Tucev v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development)
[2017] FCAFC 19
•2 March 2017
FEDERAL COURT OF AUSTRALIA
Tucev v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 19
Appeal from: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Tucev (No. 2) [2015] FCCA 3248 File number: NSD 59 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 discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement
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 Act 1996 (Cth)
Civil and Administrative Tribunal Act 2013 (NSW)
Federal Court of Australia Act 1976 (Cth) s 27
Federal Circuit Court of Australia Act 1999 (Cth) s 10AA
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, 83, 84, 94, 119, 120
Airports Legislation Amendment (2015 Measures No 1) Regulation 2015 (Cth)
Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)
Cases cited: Antoun v R [2006] HCA 2; 224 ALR 51
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
Attorney-General (NT) v Chaffey [2007] HCA 34; 231 CLR 651
August v Commissioner of Taxation [2013] FCAFC 85
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
Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1
Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285
Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Hevers & Anor [2015] FCCA 1814
Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development v Rigney (No 3) [2015] FCCA 3133
Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52
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
Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631
Patrick Stevedores Operation No 2 v Maritime Union of Australia [1998] HCA 30; 195 CLR 1
R v Joske; Ex parte Shop Distributive and Allied Employees’ Association [1976] HCA 48; 135 CLR 194
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
Roads and Traffic Authority v Swain (1997) 41 NSWLR 452
Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674
Shanahan v Scott [1957] HCA 4; 96 CLR 245
Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420
Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995)
Thomas v Mowbray [2007] HCA 33; 233 CLR 307
Victoria v Commonwealth [1996] HCA 56; 187 CLR 416
Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300
Wilson v Anderson [2002] HCA 29; 213 CLR 401
Date of hearing: 13, 14 and 15 April 2016 Date of last submissions: 26 April 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 284 Counsel for the Appellant: Mr PE King Solicitor for the Appellant: The People’s Solicitors Pty Ltd Counsel for the Respondent: Mr J Doyle with Mr DW Rayment and Ms A Mitchelmore Solicitor for the Respondent: Australian Government Solicitor ORDERS
NSD 59 of 2016 BETWEEN: BRANISLAV TUCEV
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 dated 2 March 2016 (notice of appeal) to add grounds 12, 13 and 14.
2.As to ground 11 in the notice of appeal, leave be granted to the appellant to amend the notice of appeal to add the following ground:
The primary judge erred in not having sufficient regard to expert evidence including, but not limited to, that of Simone Fogarty.
but otherwise leave to amend to add ground 11 be refused.
3.Leave be refused to the appellant to amend the notice of appeal to add grounds 15, 16 and 17.
4.The appeal be dismissed.
5.The appellant pay the respondent’s costs of the appeal, 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
For more than 20 years, Mr Tucev has lived at 40 Leggo Street, Badgerys Creek, NSW (part of folio identifier Lot 1 DP 838361) (the premises) as a tenant of the Commonwealth, which is the registered proprietor of the land.
By an application to the Federal Circuit Court of Australia (FCCA) dated 12 March 2015, the Commonwealth applied for orders terminating Mr Tucev’s tenancy agreement and for vacant possession of the premises.
Mr Tucev opposed the Commonwealth’s application on several grounds. All of those grounds were rejected by the primary judge. Mr Tucev’s appeal relates to some, but not all, of the grounds upon which he failed below.
Apart from raising various jurisdictional and constitutional issues in common with other appeals by Commonwealth tenants in the Badgerys Creek area, Mr Tucev also argued that the Residential Tenancies Act 2010 (NSW) (the 2010 RTA) had no application to the premises which he occupied because he said that the predominant use of the premises was for the purposes of agriculture, with the consequence that s 7(h) of the 2010 RTA applied.
Mr Tucev’s evidence was that the premises consisted of six acres, with residential premises on approximately half an acre. The house was described in the tenancy agreement as a four bedroom brick veneer home with single garage and galvanised iron shed. On the remainder of the land, Mr Tucev had horses, chickens and dogs and he claimed the premises were used as a farm, including to grow vegetables. Mr Tucev lives at the premises with his three daughters, whom he looks after. Mr Tucev works full time as a truck driver but said that he also made money by buying young calves to fatten and then sell. We will return later to describe why the primary judge rejected Mr Tucev’s claims regarding the predominant use of the premises.
It was common ground that on 1 March 2004, the Commonwealth and Mr Tucev entered into a residential tenancy agreement in respect of the premises, which was for a period of 52 weeks expiring on 28 February 2005. The agreement continued thereafter as a periodic tenancy.
Clause 53 in the additional terms in the residential tenancy agreement dated 1 March 2004 stated:
Proposed Airport Site
53.1The tenant acknowledges that the premises forms part of the proposed site for Sydney West Airport.
53.2In the event that the Commonwealth of Australia decides to develop the Sydney West Airport 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 term (whichever is the earlier).
53.3The tenant shall not be entitled to any payment or compensation from the landlord arising from such termination.
53.4A termination of the Agreement under clause 53.2 shall not affect an existing right or obligation accrued or incurred by a party under this Agreement or otherwise at law or in equity.
It was also common ground that by two letters dated 29 October 2014 and 24 November 2014 from the Commonwealth’s agent, the Commonwealth notified Mr Tucev first that it was likely to require possession of his premises by June 2015 and then that it did require possession of the premises by 15 June 2015. Mr Tucev had not indicated at any time that he was willing to vacate the premises by that date.
The orders made by the primary judge were as follows:
(1)The residential tenancy agreement between the applicant and the respondent in relation to the property situated at 40 Leggo Street, Badgerys Creek, NSW 2555 (formerly known as Lot 63 in DP 2119) comprising part of folio identifier Lot 1 DP 838361 (“Premises”) be terminated forthwith.
(2)Vacant possession of the Premises be given to the applicant on or before 18 December 2015.
(3)The order for vacant possession be suspended until 9 February 2016.
On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted his appeal with expedition and complied with certain directions. That stay operates until further order: 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 the appellant.
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 the 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; he knew his own material; he knew his own case; he knew the respondent Commonwealth’s submissions; and he had replied to those submissions in writing.
We have taken into account the material in the affidavits sworn by Ms Caroline 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 reasons for judgment of the primary judge have the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Tucev (No 2) [2015] FCCA 3248 (Tucev).
As noted above, Mr Tucev raised many of the same constitutional and jurisdictional issues as were raised by other Commonwealth tenants in other proceedings. His Honour said, at [6], that his reasons in the present matter ought to be read with his reasons 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’s reasons for dismissing those claims are considered at [26]–[56] below.
Putting to one side those jurisdictional and constitutional issues, the primary issues which the primary judge was required to determine in respect of Mr Tucev’s case may be summarised as follows:
(a)whether there were lawful and effective notices of termination;
(b)whether Mr Tucev’s property was predominantly used for agricultural purposes, in which event the 2010 RTA would not apply (see s 7(h));
(c)the nature of the Court’s powers under s 94 of the 2010 RTA and whether the preconditions to the exercise of that power were satisfied in relation to Mr Tucev; and
(d)whether the Court was satisfied that it was appropriate to make a termination order.
The primary judge’s reasons in respect of each of these matters may be summarised as follows.
The notices of termination
As to whether there were lawful and effective notices of termination, the primary judge proceeded on the correct basis that by virtue of s 94(2) no formal notice of termination was required in respect of long-term tenancies under the 2010 RTA. Nevertheless, the primary judge addressed at [50]–[51] Mr Tucev’s complaint that the two notices received from the Commonwealth were misleading. He accepted, at [43], that this was a relevant factor to be taken into account as part of the “circumstances” for the purposes of s 94(1)(c) of the 2010 RTA. As we have said, the two notices were the letters dated 29 October 2014 and 24 November 2014 respectively. In the first of these letters, the Commonwealth’s agent who was managing the premises informed Mr Tucev of the Government's decision that the site at Badgerys Creek would be the site for Western Sydney's airport. The letter contained the following statements:
To implement the Australian Government's decision, all properties on the site, including the property you occupy, will need to be vacated …
In the coming weeks, you will receive a formal notice of termination of your tenancy. That notice will provide a specific date by which you will be required to vacate the property. It is likely that this date will be in June 2015 - but it will not be earlier.
The primary judge also set out some extracts from the letter dated 24 November 2014, which included a statement that the government required that all tenants vacate the site by 15 June 2015.
The primary judge described at [50] the terms of the second letter as “somewhat surprising given that they are both inconsistent with the Tenancies Act and misleading to the extent that the letter suggests there is any obligation on Mr Tucev at all to vacate the home by 15 June 2015”. His Honour noted, however, that the misleading nature of the letter was overcome, to some extent, by an attachment to it, which included a reference to the government’s intention to apply to obtain a termination order with effect from 15 June 2015. His Honour observed, however, at [51] that some of these statements in the attachment were also misleading to the extent that they suggested that Mr Tucev’s right to be heard in relation to orders terminating his tenancy was “optional”. His Honour stated at [51] that, given the Commonwealth’s acceptance of the importance of treating tenants equitably, the notices ought to have informed tenants accurately of their rights, and not give an impression that Mr Tucev had no option but to vacate by June 2015.
The primary judge then referred to Mr Peter Robertson’s evidence about the assistance and information provided to tenants beyond the two letters, including the appointment of a Place Manager, Ms Wendy Salkeld, as a dedicated point of contact for tenants. Mr Robertson was a general manager at the Commonwealth Department of Infrastructure and Regional Development. 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 and project timeframes. His Honour referred at [52] to Mr Robertson’s evidence that Ms Salkeld had had regular phone and email contact with tenants seeking assistance and that there was an optional information drop-in session held on 25 February 2015 which was attended by bodies such as NSW Housing Services, Centrelink and local real estate agents. His Honour concluded that it was not clear whether Mr Tucev was directly provided with this assistance, but his Honour accepted it was at least available to him.
Predominant use of premises
On the issue of the predominant use of the premises, the primary judge rejected Mr Tucev’s contention that the 2010 RTA did not apply because of s 7(h) of that Act (which provided that the Act did not apply in respect of “premises used for residential purposes, if the predominant use of the premises is for the purposes of a trade, profession, business or agriculture”). After summarising Mr Tucev’s evidence regarding his use of the land, the primary judge said that it was difficult to reconcile Mr Tucev’s claim that the premises were primarily used for agricultural purposes with his evidence that he worked full time as a truck driver in order to maintain himself and his three daughters. The primary judge stated, at [11], that he accepted that Mr Tucev had used the premises for the agricultural purposes he had claimed, including keeping chickens and horses, growing vegetables and raising cattle. His Honour found, however, that because Mr Tucev was fully occupied as a truck driver and also had to care for his daughters, the predominant use of the premises was residential and not for the purposes of agriculture.
The FCCA’s power under s 94 of the 2010 RTA
The primary judge adopted his analysis of these issues in Rigney. For convenience, that analysis may be summarised as follows.
In Rigney at [118], the primary judge described as, at first glance, “odd” that under s 94, the power to terminate a lease was at the discretion of the Court. He described this power as presenting “a large qualification to the ordinary right of a land owner, under common law, to the reversionary interest in the land as well as the contractual rights that ordinarily flow from leases of land”. The primary judge explained the power as part of a relevantly recent legislative response to “the imbalance in power between landlords and tenants and the changing need for rental accommodation throughout Australia … ”. His Honour confirmed, in Rigney at [119], that the power to make a termination order under s 94 was discretionary, but was subject to the following three conditions:
(a)that the tenant has been in continual possession of the same residential premises for a period of 20 years or more;
(b)that if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement had expired; and
(c)that the Court was satisfied that it was appropriate to do so in the circumstances of the case.
The primary judge referred, in Rigney at [121], to the judgment in Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) (Swain). That decision related to the Residential Tenancies Act 1987 (NSW) (the 1987 RTA) and the duty of the NSW Civil and Administrative Tribunal (the State Tribunal) to terminate an agreement under s 64(2)(c) (which provided for such an order to be made where “having considered the circumstances of the case, it is appropriate to do so”). Justice Rolfe described the possible “circumstances” which may have to be taken into account under that provision as:
… the time the tenant has occupied the premises, the age and state of health of the tenant, the necessity for any number of reasons for the tenant to live in a particular area, and the inability of the tenant to obtain other suitable accommodation in which, of course, I include accommodation in an area suitable for matters such as proximity to family, facilities or employment. …
The primary judge noted, in Rigney at [122], that Rolfe J’s decision was upheld on appeal in Roads and Traffic Authority v Swain (1997) 41 NSWLR 452 (Swain on appeal) where Meagher JA (with whom Priestley and Cole JJA agreed) held that the “circumstances” referred to in s 64 were the particular case before the Tribunal and the 1987 RTA was intended to balance the rights of the landlords and tenants. The primary judge also referred, in Rigney at [123], to another decision of the New South Wales Court of Appeal in Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; 72 NSWLR 674 (Scicluna), where the Court found that the power conferred on the Tribunal under s 64(2) was not a discretionary power, but rather a matter of statutory obligation once an evaluative opinion had been formed. The primary judge described this conclusion as “clearly correct” in light of the terms of the chapeau to s 64 (i.e. that the Tribunal “is to make an order terminating the agreements if it is satisfied … ”). The primary judge added, at [124] in Rigney, in respect of s 64 that:
The evaluative opinion referred to in the decision arises from the condition of the power that the Tribunal be satisfied, "having considered the circumstances of the case, it is appropriate to do so".
(Emphasis in original).
The primary judge then identified, in Rigney at [126], the following differences between the 2010 RTA and the 1987 RTA:
(a)the power to terminate a periodic tenancy under s 85 (other than where the tenant has been in occupation for 20 years or more) was not discretionary;
(b)the evaluative opinion referred to in Scicluna was no longer a condition of the power to terminate under the 2010 RTA; and
(c)the power to terminate was different depending on whether the tenant had been in occupation of the premises for 20 years or less. Where that occupation was greater than 20 years, the only power to terminate was under s 94.
The primary judge also considered, in Rigney at [127]-[132], the New South Wales Court of Appeal’s decision in Cain v New South Wales Land and Housing Corporation [2014] NSWCA 28; 86 NSWLR 1 (Cain), where it was held that the power under s 91 of the 2010 RTA to make a termination order was discretionary and, as part of the reasoning of Leeming JA, that the word “may” in s 94(1) conferred a discretion on the State tribunal. The primary judge, Rigney at [132], described this view as “clearly correct” and, Rigney at [132]-[138], as consistent with legislative reforms which were intended to address “the basic inequality of bargaining power between landlord and tenant”. The primary judge said, Rigney at [138], that the reforms introduced by the 1987 RTA and the 2010 RTA were “aimed at achieving a balance between the interests of the landlord and the tenant” and, in that context, it was not as surprising as it first appeared that there remained a discretion whether to make a termination order in respect of long term tenants.
The primary judge’s approach in determining whether or not to make a termination order under s 94 was reflected in [139] and [140] of his reasons for judgment in Rigney:
The approach to this case must then be to first determine whether the power to make a termination order arises. That requires consideration of whether the three conditions set out in s.94 exist on the facts of the case. Those include whether “in the circumstances” the Court considers that a termination order is appropriate: sub-s.94(1)(c). Those circumstances are, as explained in Swain, all of the matters that arise on the material before the Court including the availability of suitable alternative accommodation. Once that is considered, the second step is to consider the exercise of the discretion. As Leeming JA said in Cain, this may be surplus and may be no more than an affirmation of the consideration under sub-s.94(1)(c). Although there is a real discretion, it is difficult to imagine the circumstances in which it would be appropriate to make a termination order and then exercise the discretion not to make such an order.
Once the Court decides to make a termination order it must also make an order for possession of the residential premises specifying the day on which the orders takes or took effect: s.83(1). As the minimum 90 day period specified in s.94(4) does not apply to these proceedings, there is no explicit guidance in the Tenancies Act as to the date on which possession should be ordered. In light of that, the contextual matters considered above must also be involved in the determination of the date of possession. Essentially, the determination involves a balancing of the interests of the landlord and the tenant in the circumstances of each case with some regard to the length of the tenant's possession of the land.
Applying that approach to Mr Tucev’s circumstances, the primary judge found that Mr Tucev had been in continual possession of the premises for more than 20 years and that the original terms of his residential tenancy agreement expired on 28 February 2005.
His Honour then turned his attention to whether he was satisfied that it was appropriate to make a termination order in the circumstances of Mr Tucev’s case, as required by s 94(1)(c). In [147] of Rigney the primary judge described this issue as requiring “consideration of the interests of each of the parties that appear from the material before the Court”.
Whether appropriate to make an order under s 94 of the 2010 RTA
The primary judge considered the circumstances of the Commonwealth at [20] and following of his reasons for decision. His Honour said that the evidence of those circumstances was the same as in Rigney. These findings may be summarised as follows.
The primary judge outlined the history of various proposals to build Sydney’s second airport at Badgerys Creek. This history was given by Mr Robertson. 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 and project timeframes.
The primary judge described, at [26], the following four aspects of Mr Robertson’s evidence concerning the “substantial urgency” of vacating the site:
(a)obtaining vacant possession in accordance with the project timetable;
(b)the incompatibility of continued residential accommodation and the ongoing investigation and demolition works, both in terms of cost and delay, which impacted work at the site and residential amenity and safety;
(c)the balance to be struck between the interests of the tenants and the high costs of them remaining on the site; and
(d)the importance of treating tenants equitably.
The primary judge summarised Mr Robertson’s evidence regarding planning for the airport and the need for substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. This work was expected to continue throughout 2015, although at the time of Mr Robertson’s affidavit dated 11 March 2015, geotechnical drilling work was being undertaken on a limited scale due to the presence of occupants at the site, which gave rise to safety concerns. The primary judge noted that Mr Robertson’s evidence did not deal directly with the part of the site on which Mr Tucev’s premises were located.
The primary judge referred to Mr Robertson’s evidence regarding the further work which was required at the site in general, which would be directed to obtaining further geotechnical and contamination information across the whole site. This information would provide inputs into the government's consideration of the land use arrangements for the site and associated costings. Mr Robertson described this information as being “urgently required”. The primary judge noted, at [29], that Mr Robertson did not really explain the basis for that urgency other than saying that a delay in obtaining the information “risks delaying the proposal overall”.
The primary judge also summarised, at [30]-[31], Mr Robertson’s evidence concerning the process for assessing individual residential tenant blocks, which Mr Robertson described as being “administratively onerous” and taking up considerable resources.
The primary judge also summarised Mr Robertson’s evidence in his subsequent affidavits dated 30 March 2015 and 21 May 2015 respectively. These affidavits contained further evidence regarding the timeframe for clearing the site and demolition activities which were being carried out.
The primary judge summarised counsel for the appellant’s cross-examination of Mr Robertson. He described the cross-examination as mainly being directed to establishing that there were other people in the Department with more knowledge of, and responsibility for, particular decisions with respect to the development of the site for an airport. The primary judge observed at [38] of his reasons for judgment that this line of questioning “did not assist the proceedings in any way”. His Honour said that the fact that someone else was responsible for decision-making or any other matter was irrelevant to the facts in issue. The primary judge concluded that Mr Robertson had given his evidence truthfully and he accepted that evidence.
The primary judge outlined the details of the “Right of First Refusal” under the Sydney Airport Group sale agreement in 2002. Mr Robertson’s evidence on this matter was described in [42]:
Mr Robertson explained that whilst consultation was currently underway and a final decision on the airport proposal had not been made, a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself. He said that essential to such proposal was the outcome of the Environmental Impact Assessment process, geotechnical and engineering investigations, archaeological surveys, and other site interrogations. In his opinion, restricted access to the site due to tenants being in possession of individual properties limits this process in many practical ways.
The primary judge then, at [43], addressed the circumstances affecting Mr Tucev which, apart from security, safety and convenience issues in relation to the whole site, he identified as comprising the following four matters:
(a)the length of Mr Tucev’s occupation of the property;
(b)the terms of the tenancy agreement between Mr Tucev and the Commonwealth;
(c)the process undertaken by the Commonwealth to obtain vacant possession of the property, including notice of the proposed development of the airport site, notice of the proposed termination of residential tenancy agreement, and any assistance given by the Commonwealth to Mr Tucev in relation to moving from the premises; and
(d)the availability of suitable alternative accommodation.
On the first of those matters, the primary judge reaffirmed his earlier finding that Mr Tucev had been in continual possession of the property for over 20 years.
On the second of those matters, his Honour referred at [45] to cl 53 of the residential tenancy agreement, the terms of which we have set out in [7] above and reaffirmed that these provisions were subject to the operation of the 2010 RTA. The primary judge relied on the provisions as indicating that, from at least March 2004 when Mr Tucev entered into the residential tenancy agreement, he was aware of the possibility that the site might be developed for the purpose of the airport.
The primary judge then summarised and made observations on the terms of the correspondence which Mr Tucev received from the Commonwealth’s property manager in the form of letters dated 29 October 2014 and 24 November 2014, as summarised at [21]-[23] above.
The primary judge then addressed the issue of the availability of suitable alternative accommodation. He noted, at [55], that while the Commonwealth’s expert real estate valuer, Mr Simon Azar, had not given evidence in Mr Tucev’s matter a number of witnesses who did give evidence in Mr Tucev’s case referred to Mr Azar’s evidence. The primary judge therefore referred to those witnesses’ evidence in reply to Mr Azar’s evidence as far as was relevant.
Those witnesses were Ms Simone Fogarty (the daughter of a tenant of another property, Mr Ken Shirvington), as well as the evidence of a registered real estate valuer, Mr Lopco Neskovski. Ms Leanne Uren also gave evidence. The primary judge briefly described the evidence of each of these witnesses. He described Ms Uren’s evidence as showing that the properties used by Mr Azar as being comparable to Mr Tucev’s premises were, at the date of the hearing, no longer available for lease. His Honour described this evidence as showing that the market for rental properties in and around the Badgerys Creek area was not stagnant.
The primary judge then summarised Mr Neskovski’s evidence relating to suitable alternative accommodation.
His Honour stated that Ms Fogarty was a senior property manager but that, for various stated reasons, he did not find her to be a convincing witness. Having said that, however, the primary judge acknowledged that Ms Fogarty had made some “reasonable” and “valid” points (some of which were also made by Mr Neskovski), including that there must be some comparison made between the size of the land and not simply the size of the house for rent; the rental market had been impacted with a number of other tenants in the Badgerys Creek area who were relocating; and that some consideration had to be given to animals owned by a tenant. At [68] of his reasons for judgment, the primary judge said that the question to which this evidence was directed was not whether identical or comparable properties were available but, rather, whether there was some suitable alternative accommodation that was reasonably available. Expressed that way, his Honour said that the question captured more accurately the balance sought to be struck between the interests of the landlord and those of the tenant. This meant that the evidence concerning the availability of premises was of limited assistance to the Court because of the proper focus required by the 2010 RTA.
The primary judge noted at [72] that, while Ms Fogarty gave evidence that the properties listed by Mr Azar had all been rented, this did not suggest that other properties would not shortly become available for rent. The primary judge accepted Ms Fogarty’s evidence that more time would improve the tenants’ chances of obtaining alternative accommodation.
The primary judge said, at [70], that the evidence indicated that there had been properties available for rent in the vicinity of Badgerys Creek and that the weekly rent was, for the most part, higher than Mr Tucev was currently paying. His Honour said that this was hardly surprising because Mr Tucev’s tenancy was always subject to the possibility of the airport being developed.
His Honour found that, despite the evidence of Ms Fogarty and Mr Neskovski about the impact on the rental market of the large number of people relocating from the airport site area, there was “no real evidence to support those assertions”. Consequently, he gave little weight to their evidence on this matter (see at [71]).
The primary judge referred to the evidence given by Mr Tucev about alternative accommodation in his affidavit dated 10 May 2015, where he said that he had made enquiries about alternative accommodation but was finding it hard to find anywhere to take him and his family. He also stated that, if he had to move, he would be forced to take his horses with him and that the issue of suitability of alternative accommodation needed to take into account the proximity of the schools which his daughters attended. The primary judge found at [74] that, while it may take time for Mr Tucev to find suitable alternative accommodation, he was not satisfied on Mr Tucev’s own evidence that none was available.
For these reasons, the primary judge concluded, at [77], that he considered it was appropriate to make a termination order and that Mr Tucev should be required to give vacant possession 60 days after the date of judgment. We have set out the orders at [9] above.
Grounds of appeal
Mr Tucev sought leave to file and rely upon an amended notice of appeal, which was in the following terms:
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 holding that it was ‘appropriate’ to order termination of the Appellant’s tenancy.
5.The primary Judge erred in holding that the termination notice was valid and effective.6.The primary Judge erred in not admitting evidence of the Appellant.7.The primary Judge erred in ordering termination forthwith and vacation on or before 18 12 2015 of the premises the subject of the action.
8.The primary Judge erred in finding that the agreement was a residential tenancy subject to Residential Tenancy Act 2010 [NSW].
9.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.
10.The primary judge erred in deferring costs or not making any orders as to costs.11.The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
12.The primary Judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their (sic) claims and in doing so, not balancing the interests of both parties.
13.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.
14.The primary Judge erred in stating the Respondents (sic) 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 (sic) reasonably believed Badgerys Creek was not being considered as a site for the airport.
15.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.
16.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.
17.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.
18.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 indicate Mr Tucev’s proposed amendments to his original notice of appeal and for which leave was required. The paragraphs struck through, grounds 5, 6, 10 and 18, reflect the grounds in the proposed amended notice of appeal which counsel for the appellant notified the Court were abandoned. It is also clear that ground 9 concerning alleged bias was not pressed in that form in this appeal. In his oral address, counsel for the appellant clarified that ground 9 was limited to the question whether the primary judge ought to have recused himself based upon what counsel for the appellant described as “apprehended institutional bias founded upon a close connection between the lessor/Commonwealth and the Court”.
The proposed amendments, apart from paragraphs 13 and 14 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 the case had been presented below.
Since the application to amend to add grounds 13 and 14 was not opposed, we would grant leave so to amend.
It is therefore necessary to rule on the application to amend to add grounds 11, 12, 15, 16 and 17. 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 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 Act1974 (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 and it will be expedient in the interests of justice that that should 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, as to ground 11, we would not allow the amendment to add the entirety of ground 11 since it is plain that the primary judge did have regard to expert evidence. We would allow the application to amend to add proposed ground 11 insofar as it raises the claim that the primary judge erred in not having sufficient regard to expert evidence including but not limited to that of Ms Simone Fogarty. The proposed ground 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 12, that the primary judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support its 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 15, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms 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 respondents, in our opinion 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 the present appellant. Secondly, the proposed ground does not correspond to a ground taken by the appellant 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 16, that the primary judge erred in not holding that the respondent Commonwealth 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 as it was not a matter raised in this case before the primary judge and it was clearly a matter on which evidence could have been adduced. In addition, nothing was said about estoppel in the written and oral submissions in this Court on behalf of the appellant.
In relation to proposed ground 17, 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, we would refuse leave to amend to add this ground. Although the matter was pleaded in the FCCA, the primary judge, at [5.d]-[5.e], found that no particulars of claims for losses or compensation were provided and no evidence was adduced in support of the claims.
Parties’ submissions – common issues
The common issues were identified by the appellant as, first, a separation of powers issue; second, that there was no “matter before the FCCA”; third, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the Federal Circuit Court of Australia Act 1999 (Cth) (the FCCA Act); fourth, that the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (the Instrument) was invalid; fifth, 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 sixth, that there was apprehended institutional bias.
The revised written submissions of the appellants 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 Act 2003 (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 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.
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 was terminated and by which vacant possession of the residential premises was 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.
Section 94, which applied to the present appeal, provided as follows:
94 Termination of long term tenancies
(1)The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement:
(a)if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and
(b)if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and
(c)if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case.
(2)A landlord may make an application under this section without giving the tenant a termination notice.
(3)The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.
(4)The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must not order that vacant possession be given earlier than 90 days after the order is made.
Part 6 of the 2010 RTA provided as follows:
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
Separation of powers
The appellant submitted that an order under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act involved an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution. It was submitted that the power received by the omnibus provisions of the FCCA Act was the administrative or executive power of the State Tribunal in respect of long residential tenancy leases treated by the 2010 RTA as freehold. The State Tribunal was not a court and, it was submitted, was incapable of being the recipient of powers conferred by Commonwealth statutes under s 77(iii) of the Constitution. In turn, it was submitted, the FCCA was a court and was incapable of being the recipient of the executive powers of the State Tribunal. In such a case the FCCA Act provisions, including the Instrument, were submitted to be invalid. The appellant submitted that the legislation being transported into the federal regime was a law which merely gave to the State Tribunal a discretion subject to conditions to terminate the long leases on a broad range of grounds ranging from the economic to the political, none with any legal content or involving the exercise of a mix of functions. The appellant, it was submitted, was entitled as of right by virtue of a fundamental incident of his subsisting leasehold tenure, to remain in possession of the premises until a lawful termination order was made by an administrative not a legal tribunal. In that sense the leases were not terminable by law. The appellant submitted that no such administrative order was capable of being made by the FCCA.
The appellant also submitted that he had the right of quiet enjoyment conferred by Pt 3.3 of the 2010 RTA such that the tenancy could only be terminated by a discretionary order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant submitted that because the tenancy was not terminable by any contractual or other action outside the State Tribunal, such as notice of the lessor or abandonment or frustration of the leasehold tenure, his tenure and cognate right of possession was a statutory lease subject to termination by the State Tribunal with “a strong affinity” with freehold tenure: Wilson v Anderson [2002] HCA 29; 213 CLR 401 at 421-22.
The appellant submitted that at the time of the commencement of proceedings or any time prior to their commencement he had not been and was not in breach of any contractual term nor of any statutory term applied by the 2010 RTA which would confer a right of re-entry to his land. Even if the legal standard did apply to the question of the termination of his tenure, no evidence had been adduced to support such a legally endorsed outcome in the FCCA or elsewhere. Rather the Commonwealth’s case was founded solely upon the administrative powers vested in the FCCA which, the appellant submitted, were legally insufficient to authorise the exercise of any power of termination, or dispossession, or execution as described in s 81 of the 2010 RTA. The appellant submitted that no right of re-entry at common law had arisen in respect of his property; rather such right was contingent upon an order being made under Pt 6 of the 2010 RTA.
The appellant also submitted that the findings as to competing needs of the lessee’s and lessor’s interests and what was “appropriate” was a determination which was clearly not of a legal character, which was the very reason that the State Tribunal was established and given exclusive jurisdiction in New South Wales with respect to termination of residential tenancies.
The appellant submitted that the primary judge erred at [71] in Rigney in relying on the consideration that the orders he was to make were “immediately enforceable by the Court.” However, the appellant submitted, a termination order as defined in Pt 5 of the 2010 RTA was not immediately enforceable because, until an order under Pt 6 of that Act was made, 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 … 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 … ”: see s 120 of the 2010 RTA. In short, the appellant submitted, a termination order terminated the tenure relationship under the general law of New South Wales, but not more. A separate regime of enforcement with respect to obtaining possession and removal of chattels after a termination order was made was provided for by Pt 6 of the 2010 RTA. Accordingly none of the orders sought or made were “immediately enforceable” in their present form by the FCCA.
The appellant submitted that the carve-out of the State Tribunal’s power in relation to the present matters and its conferral by way of an omnibus provision upon the FCCA was a carve-out of both the administrative and quasi-judicial power of New South Wales. Further, the Commonwealth must take New South Wales tenancy law as it found it. After referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson), the appellant submitted that “no different result should follow now” and the State Tribunal remained the appropriate venue for the claims made by the Commonwealth in the FCCA.
The appellant submitted it was not in dispute that, but for the amendments made to the FCCA Act in March 2015, residential tenancy agreements made in New South Wales might only be terminated by an order of the State Tribunal under Pt 5 of the 2010 RTA. The appellant referred to ss 81(1) and 119 of the 2010 RTA, the former providing that a residential tenancy agreement terminated only in the circumstances set out in that Act and the latter providing that a landlord must not commence proceedings against a tenant 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. The appellant submitted that s 81 precluded the making of orders for termination and possession by any court and the same applied to the FCCA.
The respondent submitted, with reference to Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 267 (Brandy) that “there are functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not”.
The respondent submitted that in determining a Commonwealth tenancy dispute, s 9 of the Instrument conferred on the FCCA any powers that were powers of the State Tribunal under the 2010 RTA as the applicable law, subject to those powers being relevant to determining the dispute and to the qualifications in s 5(3) of the Instrument. The Instrument did not apply any of the provisions of the Civil and Administrative Tribunal Act 2013 (NSW), which constituted the State Tribunal and prescribed its jurisdiction and procedures, to proceedings in the FCCA. The provisions of the FCCA Act governed the procedure to be applied.
The respondent submitted that the fact that the Commonwealth Parliament was picking up, for application in a Ch III court, legislation that would be administered at the state level by an administrative tribunal (which may exercise judicial power) was without constitutional difficulty provided that the conferral did not involve the Ch III court exercising non-judicial power. The respondent submitted s 5(3) of the Instrument was significant in that context.
The respondent relied on four features of s 10AA of the FCCA Act and the Instrument which had been relied on by the primary judge.
The first feature was that the exercise of the discretion conferred by s 8(2) of the Instrument, which modified the operation of s 94 of the 2010 RTA, guided by the scope, object and purpose of the 2010 RTA was a familiar, if not daily, part of any court’s work. Given that the Instrument conferred on the FCCA powers by reference to the 2010 RTA, subject to s 8, the conclusion of the primary judge that the exercise of the discretion should be guided by the scope, object and purpose of the 2010 RTA was entirely orthodox and without error.
The second feature was that the power conferred was not “simply one that arises on the basis of some idiosyncratic notions of individual judges”. The primary judge noted that “as with any broad power with which a court is invested … guiding principles will emerge”. The respondent submitted that the development of principles was consistent with the judicial method, citing Thomas v Mowbray [2007] HCA 33; 233 CLR 307 at 351. Reliance on what occurred in the State Tribunal was not determinative of the nature of the power being exercised, the proper characterisation of a power being contingent, inter alia, on the “nature of the body dealing with it”: HA Bacharach Pty Ltd v Queensland [1998] HCA 54; 195 CLR 547 at 562.
The third feature was that the determination by the FCCA would set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. The respondent submitted that the application of a broad criterion by reference to the circumstances of a particular case, whether imposed by the general law or pursuant to statute, was not an unusual feature in the exercise of judicial power: Thomas v Mowbray at 345 -347. Section 94 of the 2010 RTA required the FCCA to evaluate the nature of a tenant’s occupation of premises and whether it amounted to possession; the period of time for which the tenant had been in continual possession of the premises; whether the term of the original fixed term agreement had expired; and whether it, the Court, was satisfied that it was appropriate to make a termination order in the circumstances of the case.
The fourth feature was the enforceability of the Court’s orders. The respondent submitted that if the FCCA made an order terminating a residential tenancy agreement under the 2010 RTA, it must also make an order for possession of the residential premises specifying the day on which the order takes or took effect: s 83(1). As the appellant accepted, the Court’s orders had the immediate effect of terminating the contractual relationship, without which the tenant was no longer lawfully in possession and should vacate in accordance with the order for possession. In the event of non-compliance with that order, a warrant may be obtained on the authority of the order for possession: s 121(1). (We note that by s 8 of the Instrument a reference to the Principal Registrar of the State Tribunal is a reference to a Registrar of the FCCA.) The respondent submitted that the process of obtaining the warrant did not involve any traversing of the circumstances in which the FCCA’s order was made, or whether it was valid providing the Registrar was satisfied that the order had not been complied with the warrant would issue. By force of the FCCA’s orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable. The enforceability of decisions was, as the primary judge properly saw, significant and “one aspect of judicial power which may serve to characterise a function as judicial when it is otherwise equivocal”: Brandy at 268.
In reply, the appellant submitted that the respondent’s argument should be rejected as it failed to articulate any clear answer to the case that the exercise of power by the FCCA was non-judicial in character. Having regard to the character of the State Tribunal whose powers were picked up and conferred on the FCCA and the nature of the decision under the applicable law adopted under s 10AA(3)(b) and (e) which was administrative in character creating rights as from the date of the hearing rather than deciding rights as at the date of the commencement of proceedings, the exercise of power by the FCCA should have been characterised by the primary judge as non-judicial and both the Instrument and the amendments to the FCCA Act authorising its use should have been held to be invalid.
The appellant submitted that his tenancy under the State Tribunal and the 2010 RTA was subject to a discretionary regime that had regard to economic and political considerations with respect to the length and character of his tenure; that discretionary regime was then imposed on a Ch III court that struggled to divorce those considerations from the decision-making process, and which demonstrated by its reasons that the Court found the exercise unfamiliar. The appellant submitted that these “considerations included the general economy as being interests that prevailed over the specific issues of the appellant[]. When considering the individual circumstances of the appellant[] (i.e. to weigh in the balance against political and economic considerations) the former being more familiar issues to courts, the [primary judge] disregarded those and held that examination of comparable properties for alternative accommodation was not necessary, and without regard to individual circumstances.”
The appellant submitted the mix of functions conferred on the FCCA led the court into error and also led to injustice to the appellant.
We turn to consider these submissions.
We first mention the reliance by the appellant in oral submissions on what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61. The question in that case was whether, as the High Court had previously held, it was correct to say that “court” in s 77(iii) of the Constitution meant the judges and judicial officers who were members of the court but did not include the organisation and officers through which its powers and jurisdiction were exercised. The High Court held that this narrow interpretation was not to be preferred and that a master, although not a member of the court, was encompassed by the words “any court of a State” in s 77(iii) (whereby in respect of any of the matters in ss 75 and 76 the Parliament may make laws investing any court of a State with federal jurisdiction). The circumstances in that case were therefore very different to the issues in this appeal which concern the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach insufficiently took account of the States’ legislative competence to alter the structure and organization of State courts. His Honour also said, being the passage relied on by the appellant:
Although the Commonwealth Parliament has no power to alter the structure or organization of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts. Moreover, it may condition the investment of federal jurisdiction on the existence of a suitably structured State court — see, for example, s. 39(2) of the Judiciary Act 1903 (Cth), as amended.
We see nothing of present assistance in that statement although, of course, we accept that there are limitations on the nature of the power which may be conferred on a Ch III court.
In that respect, we note the terms of s 5(3) of the Instrument which stated that nothing in ss 5 to 10 of the Instrument had effect so as to confer non-judicial power on the FCCA, unless the non-judicial power was incidental to the exercise of judicial power by that Court.
We reject the appellant’s submission that merely because the State Tribunal formerly exercised powers in relation to Commonwealth tenancy disputes involving land in New South Wales this demonstrated or assisted in demonstrating that non-judicial power had been conferred on the FCCA.
As a matter of history, landlord and tenant disputes were heard and determined by the ordinary courts for many decades. Further, a State Tribunal may exercise State judicial power, even if it is not a court.
In Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 (Precision Data) the High Court said, at 189:
… although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. Again, functions which are ordinary ingredients in the exercise of administrative or legislative power can, in some circumstances, be elements in the exercise of what is truly judicial power.
It follows that functions may be classified as either judicial or administrative according to the way in which they are to be exercised. So, if the ultimate decision may be determined not merely by the application of legal principles to ascertained facts but by considerations of policy also, then the determination does not proceed from an exercise of judicial power. That is not to suggest that considerations of policy do not play a role, sometimes a decisive role, in the shaping of legal principles.
(Footnotes omitted.)
In Brandy at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, there were functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.
Next, the appellant contended that the primary judge erred in Rigney at [71] in relying on the consideration that the orders he was to make were “immediately enforceable by the Court”. To give the context for his Honour’s statement, we reproduce the following paragraphs from that judgment, at [69]-[71]:
The Court is required to apply the Tenancies Act to the facts and circumstances shown on the evidence before it. Thus, in this case, there will need to be a factual determination of, amongst other things, whether or not the respondents have been in continual possession of the premises for 20 years. This in turn will require an evaluation of the nature of the respondents’ occupation and whether that amounts to possession within the meaning of the Tenancies Act. Also in issue will be whether there is a residential tenancy agreement in respect of those premises, whether that agreement was for a fixed term, and whether that fixed term (if any) has expired. In short, the Court is required to conduct an enquiry concerning the law as it is on the facts as they are: see Tasmanian Breweries at 374 per Kitto J.
Once that inquiry has been conducted, the Court must then determine whether to make a termination order. Such a termination order requires there to be an order for possession at the same time to take effect as the Court considers appropriate. While the respondents are correct to say that this second inquiry is a very broad and arguably a discretionary one, that is not, in light of the authorities discussed above, decisive of the issue of whether the power is non-judicial.
First, any discretion, or more accurately, determination of appropriateness, must be bound by the object, scope and purpose of the Tenancies Act. This is a familiar, if not daily, part of any Court’s work. Secondly, it is to be expected, as with any broad power with which a Court is invested, that guiding principles will emerge so that the power is not simply one that arises on the basis of some idiosyncratic notions of individual judges. Thirdly, the determination by the Court will set the rights and obligations of each of the parties to the dispute which must then be observed by the parties. Fourthly, and in my view, critically, those rights and obligations are immediately enforceable by the Court.
In our opinion, the primary judge was here referring to the distinction described in Brandy as to whether the body had the capacity to give a decision enforceable by execution or whether, as in that case, a determination by the Commission was not binding or conclusive between any of the parties to it but the Commission was required to lodge a determination in a registry of the Federal Court and upon registration the determination was to have effect as if it were an order made by the Court. As Mason CJ, Brennan and Toohey JJ said at 257, the fact that the Commission could not enforce its own determinations was a strong factor weighing against the characterisation of its powers as judicial. In our opinion, it is not significant, in this context, that s 120 of the 2010 RTA provided that a person must not enter residential premises for the purposes of taking possession of those premises unless the person was acting in accordance with a warrant arising out of an order for possession of the State Tribunal or a writ or warrant arising out of a judgment or order of a court. On the assumption that a warrant referable to s 120 of the 2010 RTA was necessary where the order for possession was made by the FCCA, it remains the case that the FCCA can enforce its own determinations. We accept the respondent’s submissions that the FCCA’s orders had the immediate effect of terminating the contractual relationship and, in the event of non-compliance, a warrant might be obtained on the authority of the order for possession: s 121(1). By force of the FCCA’s orders, there was a binding determination of the rights of the parties which was, as the primary judge described it, immediately enforceable.
We reject these submissions. The primary judge was in each case exercising his discretion and doing so by reference to the statutory language. In our opinion, it is not a ground of criticism that the exercise of the court’s discretion led to three categories of periods of suspension of the orders. No separate reasons explaining the three categories needed to be given as in each case the orders flowed from the prior fact-finding and reasoning. The primary judge was posing the question whether it was appropriate that the tenancy agreement in each case be terminated; whether it was appropriate that there be an order for vacant possession; and the appropriate date at which that order should take effect. In our opinion, there was no failure on the part of the primary judge to consider the appropriateness of making an order at all.
It is also convenient to state here that we reject the submission put by the appellant that the primary judge ordered termination forthwith and vacation on 18 December 2016. In fact, the effect of the orders of the primary judge was to give 60 days from the date the order was made.
As to the reference to the purported balancing test applied by the primary judge, his Honour said at [68], with reference to the availability of suitable premises in the market for relocation:
The question to which this evidence is directed is not whether identical or comparable properties are available but rather, whether there is some suitable alternative accommodation that is reasonably available. I do not mean to state the question in a concrete way so as to substitute what is a broad discretion for some narrower, potentially stricter, test. However, framed in that way, the question captures, in my view, more accurately the balance that is sought to be struck between the interests of the landlord and those of the tenant. That aim has not gone so far as to require the eradication of any difficulty or hardship that might be suffered by a tenant who must leave a property after a long occupation. Nor does it require an order that ensures that the tenant is able to live in near identical circumstances as those to which he or she has become accustomed.
In our opinion, read in context, no error is disclosed by this use of language. The primary judge specifically referred to the broad discretion under s 94. Also in Swainon appeal Meagher JA, with whom Priestley and Cole JJA agreed, after referring to what the words “circumstances of the case” meant in then s 64, said at 456, “I think it can be fairly stated that the Act is intended to balance the rights of landlords and tenants.” In our opinion, the appellant’s submissions sought to take the word “balance” out of context when it is clear that that was not the test that was applied by the primary judge and, speaking generally, it is correct to say that the legislation does seek to strike a balance between the interests of the landlord and those of the tenant.
We see no error in the manner in which the primary judge took into account the correspondence between the Commonwealth, or its agents, and the appellant. His Honour set out the correspondence at some length in his consideration of the circumstances affecting the appellant from [47] and following of the reasons for judgment. The correspondence was taken into account by the primary judge in the exercise of his discretion.
We see no significance and no error in the manner in which the primary judge considered the first right of refusal in relation to the construction of the airport. At [42] of the reasons for judgment the primary judge accepted the evidence of Mr Robertson and found a clear site was necessary to allow for investigations of the site to inform any proposal that could be made to the Sydney Airport Group, or the market, or to be carried out by the government itself.
We reject as untenable the submission that the effect of s 94 of the 2010 RTA meant that in the eyes of the law in NSW, the appellant was more than a lessee, and had a leasehold tenure in the nature of freehold. The statute does not have that effect. We see no force in the appellant’s reference to Wilson v Anderson [2002] HCA 29; 213 CLR 401 which concerned a “lease in perpetuity” granted by the Crown under s 23 of the Western Lands Act 1901 (NSW).
We reject the submission that the primary judge did not take into account the continued use of the premises by the appellant for more than 20 years. The primary judge was well aware of the use of the premises having considered it at some length at [9]-[11] and because use of the land went hand in hand with possession. Since the Commonwealth proposed to use the land it would not make the land waste.
The other submissions put by the appellant about the safety of the premises, reducing fire risk and enhancing environmental care of the land show no error on the part of the primary judge in light of the proposal by the Commonwealth to prepare the land for use as an airport site. As we read them, at [26] of his reasons for judgment the primary judge accepted the evidence of Mr Robertson as to the incompatibility of continued residential accommodation and the ongoing investigation and demolition works both in terms of cost and delay impacts on the work at the site and the residential amenity and safety.
We reject the submissions that the primary judge adopted a test which was an approach to the exercise of his discretion under s 94 which was the most unfavourable to the appellant’s position and that the primary judge did not sufficiently identify “all the circumstances” as required by s 94. We also reject the submissions that the primary judge did not conduct a fair and reasonable balancing exercise and did not ask himself with respect to either the termination or possession orders whether the result as expressed in his orders was appropriate. We also reject the submissions that the primary judge did not exercise a discretion with respect to the making of the orders; and made orders which did not reflect Pts 5 and 6 of the 2010 RTA. Each of these submissions is inconsistent with the terms of the primary judge’s reasons for judgment.
As to the appellant’s submission that the primary judge found that Mr Tucev’s three daughters had an interest in the premises which was “derivative” from Mr Tucev’s interest, the short answer is that the primary judge made no such finding. At [252] and following below we give our reasons for refusing to admit into evidence on this appeal the affidavit of Mr Tucev dated 9 June 2015 which was capable of having been adduced below, was available to have been read below, but which was not read below. We therefore reject the submission that “the case failed for want of proper parties, failure to consider the interests of the family, and a wrongful exercise of the discretion under section 94”.
As to the submission that the primary judge erred in rejecting Mr Tucev’s contention that the land was predominantly used for the purpose of agriculture and it was incorrect for the primary judge to conclude that s 7(h) of the 2010 RTA did not apply or, alternatively, did not apply to part of the premises, we agree with the reasoning and conclusion of the primary judge on this issue which we have set out at [25] above. We reject this submission.
As to the submission that “The finding of credit against [Mr Tucev] is flawed because there is no evidence to the contrary effect, nor was he cross-examined on the key issue concerned”, the short answer is that there was no such finding. We reject the submission.
Other grounds in the amended notice of appeal
As to ground 9 in the amended notice of appeal, that the primary judge erred in not recusing himself where he had heard other cases, this ground was not pressed. We have considered above and rejected the claim of so-called institutional bias.
As to ground 11 in the amended notice of appeal, to the extent that we have granted leave to amend to add this ground, in relation to expert evidence, this centres on the claim concerning the availability of suitable alternative accommodation. The primary judge considered the evidence of Ms Fogarty throughout [55]-[72] of the reasons for judgment and, in our opinion evaluated that evidence, giving reasons for concluding that she was not a convincing witness but did make a number of reasonable points which the primary judge then considered. Insofar as the ground claims that the primary judge did not have sufficient regard to that evidence, in our opinion it fails in light of the detailed consideration the primary judge gave to it. We have also considered this issue at [48]-[54] above. We see no appellable error in that consideration.
As to ground 12, concerning the Commonwealth’s urgent need for vacant possession, we have considered above the evidence of Mr Peter Robertson. We see no appellable error in the primary judge accepting that evidence. We reject the submission that there was no real evidence to support the Commonwealth’s claim in that respect. It follows that there was evidence to take into account as against the evidence of the appellant. This ground therefore fails. We add that that there was no error in the primary judge evaluating the competing evidence as he did.
The remaining grounds, grounds 13 and 14, 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; 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 13, 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 at [179] and following above, the basis on which the Commonwealth sought the termination order was in respect of the premises which were intended to form part of an airport site to be declared for the purposes of the Airports Act. 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 94 of the 2010 RTA 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 [21] of the reasons for judgment 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 and 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 14, 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. Objectively, the residential tenancy agreement in respect of the premises was entered into on 1 March 2004 and containing cl 53 which we have set out at [7] above. We reject the submission that because the lessor did not plead that express provision for termination that it was legally irrelevant to rely upon it in evidence. As the primary judge pointed out at [5] in Tucev, the application to that Court was not a pleading.
The basis of this ground seems to be the assertion in written submissions in Uren at [14] that by 2014 nothing had been done since the Commonwealth publicly announced in 2000 that the airport was not proceeding for environmental reasons. The submission went that: “If by 2014 nothing had been done, but rather disavowed publicly, that was a legitimate reason for the tenants thinking it may not happen at all.” In the absence of evidence as to the appellant’s thinking this ground must fail, especially in light of cl 53 of the tenancy agreement entered into in March 2004.
The application to adduce further evidence on appeal
On this appeal the appellant sought to adduce the following further evidence:
1.Affidavit of Mr Branislav Tucev dated 9 June 2015;
2.Affidavit of Mr Branislav Tucev dated 9 January 2016;
3.Affidavit of Mr Branislav Tucev dated 22 March 2016;
4.Affidavit of Ms Sandra Uren dated 6 March 2016;
5.Further affidavit of Ms Sandra Uren dated 6 March 2016;
6.Affidavit of Dr Anthony Green dated 9 March 2016;
7.Affidavit of Mr Kingsley Liu dated 1 February 2016;
8.Affidavit of Mr Kingsley Liu dated 9 March 2016.
Section 27 of the Federal Court of Australia Act1976 (Cth) provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings out of 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 at [116] and [119] as follows:
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.
…
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 eight affidavits listed above.
Affidavit of Mr Branislav Tucev dated 9 June 2015
This affidavit was not read before the primary judge. It was an affidavit in support of an application for leave to appeal to this Court (matter NSD 655 of 2015) which concerned an application to set aside signed consent orders allowing the Commonwealth’s application. Those proceedings are referred to in Tucev at [3].
If the respondent before the FCCA, the present appellant, had sought to read that affidavit in the FCCA it is likely there would have been a question as to form and as to relevance in light of the response to the Commonwealth’s application filed in the FCCA and dated 10 May 2015.
Plainly this evidence was available to be adduced before the primary judge as it was sworn before 24 July 2015, the date on which the evidence in that application by the Commonwealth was tendered.
The prospective significance of this affidavit in the present appeal, we assume, is that this evidence which was not before the primary judge, and in respect of which there was therefore no opportunity to object to its admissibility and no cross-examination, purports to state that Mr Tucev’s daughters are co-tenants with him of the land and that none of his three daughters had received termination notices or been joined in the proceedings. In turn this forms the basis of a submission on behalf of the appellant that:
The Judge held that interests of Mr Tucev’s family is in the premises ‘derivative’ from the interest of Mr Tucev, and hence they are not co-tenants or sub-tenants. However assuming as the Judge was prepared to find, correctly, that the family has an interest in the land as lessees, then the proper inference was not that Mr Tucev held the land under a periodic agreement [refer section 3] but under a new tenancy, implied by law from the facts of the case. That being so the case failed for want of proper parties, failure to consider the interests of the family, and a wrongful exercise of the discretion under section 94.
In fact, it appears that the primary judge did not deal with this question at all, no doubt because there was no evidence about it and the point was not referred to in the appellant’s response to the Commonwealth’s application.
We also observe that the subject matter of this submission is not within the proposed amended grounds of appeal which we have set out at [57] above.
We do not exercise the discretion conferred by s 27 to receive this further evidence. We reject the application that the affidavit dated 9 June 2015 and sworn by Mr Tucev be admitted before this Court.
Affidavit of Mr Branislav Tucev dated 9 January 2016
We shall assume that this affidavit was sought to be read in the appeal. It appeared to be contained in a list of the affidavits on which the appellant relied dated 12 April 2016 which the Court directed the appellant to file, although in that document it was incorrectly referred to as being an affidavit of Ms Natasa Tucev.
In our opinion, the affidavit referred to nothing relevant to this appeal but was relevant solely to the application for a stay. On the assumption we have made, we reject it.
Affidavit of Mr Branislav Tucev dated 22 March 2016
This affidavit referred to Mr Tucev’s state of mind in terms of concerns and worry and consequent difficulty sleeping. In our opinion this evidence would have been available at the time of the hearing before the primary judge. Further, we are not satisfied that this further evidence would have produced a different result if it had been adduced at the trial. Paragraphs 4 and the second paragraph numbered 2 contain inadmissible opinion evidence which we also reject on that basis. We do not exercise the discretion conferred by s 27 to receive this further evidence.
Affidavit of Ms Sandra Uren dated 6 March 2016
The appellant sought leave to rely upon this affidavit in his appeal. The respondent notified objections to it dated 18 March 2016.
This affidavit is of nine paragraphs. In this affidavit Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” which states that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose 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 accept that, with the exception of paragraph 9, this material would not have been available at the time of the hearing before the primary judge.
However, 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; and we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. It is also not relevant to the present appeal. In the result, 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 and sought leave to rely upon it in her appeal. The respondent notified objections to it dated 18 March 2016. This affidavit is of 10 paragraphs.
In paragraph 5, Ms Uren sought to give evidence about what she said were deficiencies of the Western Sydney Airport Draft Environmental Impact Statement 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 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 Peter 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 showed “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. It is in any event very difficult to see how it is relevant to the present appeal. Further, in the first sentence, Ms Uren gives very general evidence in conclusory form when the primary judge had before him, and considered, detailed evidence by the Urens on this subject. As to the paper sought to be annexed, it too is in a general form. It does 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 seeks 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 EIS 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 are 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 this 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 eighty-four (284) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny, Robertson and Griffiths. Associate:
Dated: 2 March 2017
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