Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) (No 2)

In the matter of Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) (No 2), the applicants, including Ms Uren, sought to restrain the enforcement of warrants for possession of their properties, which were set to be used for the construction of infrastructure at Badgerys Creek. The applicants argued that the Commonwealth had no right to immediately enforce the warrants due to the cessation of a particular contractor for the project. The Federal Court was tasked with determining whether the applicants had established a sufficiently strong prima facie case to support the grant of an interlocutory injunction.

The legal issues before the Court involved whether the applicants had demonstrated a probability of success at a final hearing and whether any harm they suffered prior to the termination of their tenancies could affect the enforcement of the warrants. The Court considered the importance of s 78B of the Judiciary Act 1903 (Cth) and the applicants' failure to file or serve a notice under that section, which would ordinarily require a demonstration of necessity in the interests of justice to proceed with the applications. The Court also assessed the likelihood of success for the applicants' arguments that Judge Smith had erred in exercising his discretion when granting the warrants for possession.

The Court found that the applicants had not established a sufficiently strong prima facie case to support the grant of an interlocutory injunction. The deliberate default of the applicants in filing or serving a notice under s 78B of the Judiciary Act was heavily against them. The Court held that the mooted new constitutional matter was flimsy and unlikely to have any substance. Furthermore, the Court found that the Commonwealth's cessation of a particular contractor for the project was irrelevant to its right to enforce the warrants immediately. The applicants' argument that they suffered harm prior to the termination of their tenancies was also deemed insufficient to affect the enforcement of the warrants, as any harm could be compensated by an order for damages.

ORDERS:
1. The application for an interlocutory injunction dated 8 June 2017 be dismissed.
2. The applicant pay the respondent’s costs as agreed or taxed.
3. In the event that no agreement as to the quantum of the costs can be reached, leave be granted to the respondent to make an application for a lump sum costs order on or before 6 July 2017.