Watkins v Commonwealth of Australia (as Represented by the Department of Infrastructure and Regional Development)
[2017] HCATrans 146
[2017] HCATrans 146
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S82 of 2017
B e t w e e n -
LORRAINE WATKINS
Applicant
and
COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)
Respondent
NETTLE ACJ
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 14 JULY 2017, AT 10.27 AM
Copyright in the High Court of Australia
HIS HONOUR: This is another application for a stay of execution of judgment or an interim injunction pending determination of an application for special leave to appeal against orders of the Full Court of the Federal Court of Australia (Kenny, Robertson and Griffiths JJ)[1] rejecting an appeal from orders of the Federal Circuit Court of Australia (Judge Smith)[2] terminating a residential tenancy agreement in relation to property at Badgerys Creek in New South Wales that has been acquired by the Commonwealth for the purpose of constructing or having constructed on it Sydney’s second major airport. Each party has filed extensive written submissions and for that reason, and because of the nature of the application, I have concluded that it is appropriate to be dealt with on the papers. Accordingly, I direct pursuant to r 13.03.1 of the High Court Rules 2004 (Cth) that the application be determined without listing it for hearing.
[1] Watkins v Commonwealth [2017] FCAFC 25.
[2] Commonwealth v Watkins [2015] FCCA 3399.
Earlier this year, it appeared that the proceedings in Dattilo v Commonwealth[3] (“the Dattilo proceedings”) might serve as a test case dispositive of this and other proceedings concerning the termination of tenancy agreements at Badgerys Creek. Thus far, that has not come to pass. On 5 April 2017, I rejected an application by Mr and Mrs Dattilo for a stay of execution pending determination of their application for special leave to appeal. The Dattilos’ application for special leave to appeal is yet to be determined.
[3] [2017] HCA Trans 67.
This application concerns a tenancy agreement between the applicant (“Ms Watkins”) and the Commonwealth in relation to premises situated at 195 (formerly Lot 55) Longleys Road, Badgerys Creek, New South Wales (“the premises”). On 21 December 2015, Judge Smith made orders terminating the residential tenancy agreement and directing that vacant possession of the premises be given to the Commonwealth on or before 28 December 2015. On 2 March 2017, the Full Court dismissed Ms Watkins’ appeal from those orders. On 30 March 2017, Ms Watkins filed an application for special leave to appeal to this Court. That application is yet to be determined.
The principal considerations relevant to the exercise of this Court’s discretion to grant a stay of execution of judgment pending an application for special leave to appeal are: whether there is a substantial prospect of special leave to appeal being granted; whether the applicant has done what she could to procure a stay from the Court below; whether the grant of a stay would cause loss to the Commonwealth; and otherwise where the balance of convenience may lie.[4] For the reasons which follow, I do not consider that Ms Watkins’ prospects of obtaining special leave to appeal or the balance of convenience warrants the grant of a stay.
[4] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[No 1] (1986) 161 CLR 681 at 685; [1986] HCA 84; Obeid v The Queen (2016) 90 ALJR 447 at 450 [14]; 329 ALR 372 at 376; [2016] HCA 9; Mercanti v Mercanti (2017) 91 ALJR 258 at 260 [11]‑[13]; 340 ALR 225 at 227‑228; [2017] HCA 1.
Prospects of special leave being granted
On 23 June 2017, Judge Smith made an order extending the time in which the Commonwealth could apply for a warrant for possession in respect of the premises[5]. Apparently, Ms Watkins has sought leave from the Federal Court to appeal against that order but the application has not yet been determined. Ms Watkins applied to the Federal Court for an interlocutory injunction to restrain the Commonwealth applying for a warrant for possession until her application for leave to appeal had been determined, but, on 4 July 2017, Rares J dismissed the application upon the Commonwealth undertaking not to apply for a warrant for possession until 24 July 2017 and, further, to grant Ms Watkins, for a period of 21 days after execution of the warrant, reasonable access to remove her and her family’s belongings and any livestock from the premises. On 10 July 2017, Ms Watkins filed an amended application for special leave to appeal to this Court.
[5] Commonwealth v Watkins(No 2) [2017] FCCA 1325.
As stated in Ms Watkins’ original application for special leave to appeal to this Court, Ms Watkins’ original proposed grounds of appeal to this Court were effectively the same as the Dattilos’ proposed grounds of appeal. It was on the basis of those grounds that I held, on 5 April 2017, that the Dattilos’ application for special leave to appeal did not enjoy sufficient prospects of success to warrant a grant of a stay of execution pending the determination of their application for special leave.
By contrast, Ms Watkins’ proposed grounds of appeal, as stated in her amended application for special leave filed 10 July 2017, are as follows: (amendments emphasised in original)
“(a)the Full Court erred in law in holding that the power of the Parliament of the Commonwealth is not restricted by the doctrine of separation of powers under the Australian Constitution from conferring upon a Chapter III court the jurisdiction and power of a State administrative tribunal the New South Wales Civil and Administrative Tribunal [‘NCAT’] which is not a Chapter III court.
(b)the Full Court erred in law in holding that Parliament of the Commonwealth has power under section 51(i) and under section 77(i) of the Constitution to vest in the Federal Circuit Court of Australia the exclusive jurisdiction and authority of NCAT under Residential Tenancies Act 2010 [NSW] [‘RTA’] over residential tenancies in NSW by an exercise of regulation making power by the Minister administering Federal Circuit Court of Australia Act1999 [‘FCCA Act’];
(c)the Full Court erred in holding that the Minister was authorised to make Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 [Cth] [‘the 2015 Instrument’] under FCCA Act section 10AA(3);
(d)The Full Court erred in holding that the Circuit Court had jurisdiction under FCAA [sic] Act section 10(1A) and the 2015 Instrument [‘the Commonwealth law’] which commenced on 26 February 2015 to make a termination order founded upon the termination notice dated 24 November 2014 issued under the then State law later purportedly repealed by the Commonwealth law and served on the Applicant at a time when the Commonwealth law did not exist;”
Ms Watkins’ amended proposed grounds of appeal are in substance the same as some of the proposed grounds of appeal in the amended application for special leave brought by Stojan and Melitta Odzic in a related proceeding (“the Odzic proceedings”). The proposed grounds of appeal to this Court in the Odzic proceedings are as follows: (amendments emphasised in original)
“(a)the Parliament of the Commonwealth has no power under section 77 of the Constitution or otherwise to make a law delegating to a Minister of the Commonwealth the power to define and invest the jurisdiction of a Chapter III court in this case the Federal Circuit Court of Australia [‘FCCA’];
(b)the jurisdiction and powers conferred on the Federal Circuit Court of Australia were beyond power in that such comprised the jurisdiction and powers of the New South Wales Civil and Administrative Tribunal [‘NCAT’] which is not a ‘court’ within the meaning of Constitution Chapter III thereby in error compromising the separation of powers required by the Constitution;
(c)the 2015 Instrument made under Federal Circuit Court of Australia Act 1999 section 10(1A) and 10AA(2) and (3) was invalid because upon the true construction of section 10AA the Instrument was not authorised by the law;
(d) the termination notice relied on was not valid;
(e)the Respondent was estopped from serving the termination notice under the Residential Tenancies Act 2010 [NSW] sections 82 and 85 by the representation relied upon by the Applicants, or by a collateral contract to the same effect;
(f)the exercise of discretion by the Federal Circuit Court of Australia miscarried.”
As can be seen, Ms Watkins’ proposed ground of appeal (a) is different in form from, but the same in substance as, the proposed ground of appeal (b) in the Odzic proceedings. Similarly, Ms Watkins’ proposed ground of appeal (b) is different in form from, but the same in substance as, proposed ground of appeal (a) in the Odzic proceedings. Ms Watkins’ proposed ground of appeal (c) is similar in form and substance to proposed ground of appeal (c) in the Odzic proceedings. And Ms Watkins’ proposed ground of appeal (d), although quite different in form, is in material substance identical to the contentions advanced in support of proposed ground of appeal (d) in the Odzic proceedings. Such similarities are unsurprising. Counsel for the applicants in the Odzic proceedings, Mr King, also appears for Ms Watkins.
On 12 July 2017, I refused an application in the Odzic proceedings for a stay of execution pending determination of their application for special leave to appeal, for the reason that I did not consider that any of the proposed grounds of appeal was sufficiently likely to attract a grant of special leave to warrant a stay[6]. For the reasons then given, which should be read as one with these, I do not consider that any of Ms Watkins’ proposed grounds of appeal is sufficiently likely to attract a grant of special leave to warrant a stay.
[6] Odzic v Commonwealth [2017] HCA Trans 143.
It is apparent from Ms Watkins’ written submissions in support of this application that she also contends that the order made by Judge Smith on 23 June 2017 to extend the time in which the Commonwealth could apply for a warrant of possession was beyond jurisdiction. On 22 June 2017, in Uren v Commonwealth (No 2)[7], Rares J dismissed a number of applications in related proceedings to restrain the Commonwealth from relying on warrants for possession, or having such warrants enforced, until 10 July 2017. One of the grounds on which those applications were brought was that the extension of time granted in those proceedings was beyond jurisdiction; effectively the same point for which Ms Watkins contends in relation to the order made by Judge Smith on 23 June 2017 in this proceeding. Rares J concluded[8] ‑ as his Honour noted that both Robertson and Burley JJ had also concluded in other related matters – that the point is “so flimsy and unlikely to be found to have any substance” that it did not warrant a grant of a stay. If and insofar as the point is to be regarded as in issue in this proceeding, I agree.
[7] [2017] FCA 759.
[8] Uren v Commonwealth [2017] FCA 759 at [31].
Balance of convenience
In an affidavit sworn 3 July 2017 in support of this application, Ms Watkins deposes that it would be a great hardship for her and her son to be forced to leave the premises under duress. I accept that it will be productive of hardship for her to be required to leave the premises. Her son, David, who lives with her on the premises, has been diagnosed as suffering from Angelman’s Syndrome. He also suffers from epilepsy and an obsession‑compulsive disorder, and he is currently on the waiting list at Penrith Hospital for a hernia operation. It is said that he is much attached to the premises and, because of his disability, he is likely to become very stressed and agitated in the event of a change in his surroundings.
Further, Ms Watkins breeds pedigree puppies on the premises and, at the moment, she has a new litter on hand which she says will not be old enough to be moved for some weeks, after the process of vaccination is complete. Ms Watkins’ only source of income, apart from revenue from the sales of puppies, is a Centrelink pension benefit. Thus far, she says, she has been unable to find alternative accommodation, or at least alternative accommodation of the kind she would prefer, at a rent which she is able to afford. Previously, she had contemplated going to live in the Hunter Valley, with the assistance of her father, but she says that is no longer an option because her other son, Steven, who does not reside at the premises, has only recently been released from hospital following attempts at suicide. Steven is seriously psychologically unwell and his wife, who is from Germany, is studying at TAFE to obtain qualifications with which to gain employment. Ms Watkins says that, over the last 12 months, she has spent some $15,000 assisting Steven and his family, and, at the moment, she is looking after their four year old child to help them over the worst of their problems.
As against all that, however, it is necessary to bear the following in mind. Ms Watkins has understood for the last nine years that the premises formed part of the land earmarked for the proposed “Sydney West Airport”. That was expressly stipulated in the residential tenancy agreement into which she entered with the Commonwealth in April 2008[9]. The agreement was for a term of 13 weeks expiring on 18 July 2008. Thereafter, Ms Watkins continued to occupy the premises as a periodic tenant on the same terms as immediately before the end of the fixed term. Clause 42 of the agreement provided that, in the event the Commonwealth required vacant possession of the premises to develop the airport or for any other purpose, the Commonwealth could terminate the agreement on six months’ notice and that, in that event, Ms Watkins would not be entitled to compensation. The Commonwealth first gave notice terminating the tenancy on 26 November 2014[10] ‑ more than two and a half years ago – and, in that notice, the Commonwealth stated that it would require vacant possession by no later than June 2015. That gave Ms Watkins more than six months to find alternative accommodation.
[9] Watkins v Commonwealth [2017] FCAFC 25 at [3]‑[5].
[10] Watkins v Commonwealth [2017] FCAFC 25 at [7].
Ms Watkins failed to vacate the premises within that time and so, on 29 June 2015, the Commonwealth commenced the proceedings in the Federal Circuit Court which resulted in the order of Judge Smith of 21 December 2015 terminating the tenancy agreement and requiring that Ms Watkins give vacant possession. Even then, however, Judge Smith suspended that order until 8 February 2016 because of Ms Watkins personal circumstances[11]. Then the order was further stayed until 2 March 2017 pending Ms Watkins’ appeal to the Federal Court, and then further stayed again for a period of 28 days to enable Ms Watkins to consider the Federal Court’s decision and to apply for special leave to appeal if so advised. After that, there was no further stay sought or granted until this application for a stay was filed on 10 July 2017. Nevertheless, Ms Watkins continued and continues to occupy the premises in blatant contravention of Judge Smith’s order, paying nothing for her occupation since October 2016.
[11] Commonwealth v Watkins [2015] FCCA 3399 at [34].
Moreover, as is deposed in the affidavits affirmed by Brendan McRandle on 29 March 2017 and 29 June 2017, the Commonwealth has confirmed its commitment to the construction of the airport with construction to commence in 2018 and the airport to commence operating by 2026. Scoping and planning works are already underway. It is necessary to clear the premises for those purposes, and Ms Watkins’ continued occupation of the premises is causing delays in the timeline for those works, as well as causing added expense and inconvenience. According to the affidavit of Stuart John Valentine, affirmed on 12 July 2017, Ms Watkins is the only remaining residential occupant in residence on Commonwealth‑owned land at Badgerys Creek. The Commonwealth requires possession of the premises of which she remains in occupation so that they may be demolished. Ms Watkins has not offered to pay the outstanding accommodation fees for the period since October 2016 (although she claims they are held in escrow) and, although she has offered an undertaking as to damages, it is plain that she would not have the means to satisfy such an undertaking when and if called upon to do so. In effect it would be worthless.
Conclusion
In the result, I am not persuaded that either the prospects of success of Ms Watkins’ application for special leave to appeal or the balance of convenience favours the grant of the stay of execution which is sought. Accordingly, the application is dismissed with costs.
AT 10.27 AM THE MATTER WAS CONCLUDED
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