Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) - [2017] FCAFC 25

FEDERAL COURT OF AUSTRALIA
Watkins v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 25

Appeal from: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins & Anor [2015] FCCA 3399

File number: NSD 65 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 power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – 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 less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession

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 Act1996 (Cth)

Federal Circuit Court of Australia Act 1999 (Cth) ss 10AA

Federal Court of Australia Act 1976 (Cth) s 27

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, 77, 80, 81, 82, 83, 84, 85, 94, 119, 120, 121

Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)

Cases cited:
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30

Antoun v R [2006] HCA 2; 224 ALR 51

Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474

August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376

Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454

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

CDJ v VAJ [1998] HCA 67; 197 CLR 172

Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133

Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285

Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49

Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337

Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153

Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45

Fox v Percy [2003] HCA 22; 214 CLR 118

Gronow v Gronow [1979] HCA 63; 144 CLR 513

House v The King [1936] HCA 40; 55 CLR 499

Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623

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

McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019

Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631

Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67

Paterson v Paterson [1953] HCA 74; 89 CLR 212

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1

Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167

R v Hughes [2000] HCA 22; 202 CLR 535

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

Shanahan v Scott [1957] HCA 4; 96 CLR 245

Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588

Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995)

Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300

Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447

Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016)

Date of hearing: 13 - 15 March 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 248

Counsel for the Appellant: P E King

Solicitor for the Appellant: The People’s Solicitors

Counsel for the Respondent: J Doyle with D W Rayment and A Mitchelmore

Solicitor for the Respondent: Australian Government Solicitor

ORDERS

NSD 65 of 2016

BETWEEN:
LORRAINE WATKINS

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 her notice of appeal to add grounds 13, 14 and 15.
2.Leave be refused to the appellant to amend her notice of appeal to add grounds 10, 12, 16, 17 and 18.
3.The appeal be dismissed.
4.The appellant pay the respondent’s costs, 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

This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA). The judgment of the primary judge has the citation Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins & Anor [2015] FCCA 3399 (Watkins).
Ms Lorraine Watkins, who was one of the respondents in the FCCA, has lived at 404721, 195 (formerly Lot 55) Longleys Road, Badgerys Creek, New South Wales (the premises) for some time, although less than 20 years. As will be seen, this is relevant to the application of the Residential Tenancies Act 2010 (NSW) (2010 RTA). The Commonwealth is the registered proprietor of the land comprised in folio identifier 1/838361 (the airport site), of which the premises is a part. At the time of the hearing in the FCCA, Ms Watkins resided at the premises with her son, David (Watkins at [4]).
Ms Watkins, with her daughter Ms Nikki Allen, first commenced living on the premises in April 2008 (Watkins at [11(c)]). The Commonwealth and Ms Watkins (and Ms Allen) most recently entered into a residential tenancy agreement in respect of the premises on 14 April 2008 (the residential tenancy agreement). The term of the residential tenancy agreement was 13 weeks beginning on 8 April 2008 and ending on 18 July 2008. Ms Allen was no longer living at the premises at the time of the FCCA proceedings and took no part in those proceedings or on appeal (Watkins at [29]).
Ms Watkins continued to live at the premises after the expiry of the term. In this circumstance, the residential tenancy agreement continued as a periodic agreement on the same terms as immediately before the end of the fixed term.
Clause 42 of the residential tenancy agreement provided as follows:
Proposed Airport Site
42.1The tenant acknowledges that the premises form part of the proposed site for Sydney West Airport.
42.2In the event that the Commonwealth of Australia requires vacant possession of the premises:
b) to develop the Sydney West Airport; or
c) for any other purpose [sic: numbering]
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 fixed term (whichever is the earlier);
42.3The tenant shall not be entitled to any payment or compensation from the landlord arising from such termination;
42.4A termination of the Agreement under clause 42.2 shall not affect an existing right or obligation accrued or incurred by the landlord or by the tenant under this Agreement or otherwise at law or in equity.
By letter dated 29 October 2014, an agent of the Commonwealth notified Ms Watkins that the Australian Government had announced that land owned by it at Badgerys Creek, including that occupied by Ms Watkins, would be the site for Western Sydney’s airport. The letter also stated that Ms Watkins would be given a formal notice of termination of her tenancy and would likely be required to vacate the premises by June 2015.
On 26 November 2014, so the primary judge found (at [2], [11(i)] and [25]), an agent for the Commonwealth served Ms Watkins with a “Notice of Termination of Residential Tenancy Agreement” dated 24 November 2014. The notice was addressed to Ms Watkins and Ms Allen. It read as follows:
Notice of Termination of Residential Tenancy Agreement under Section 85 of the Residential Tenancies Act 2010 (NSW) (the Act) in respect of Premises identified in the Tenancy Agreement referred to below as 195 Longleys Road, Badgerys Creek NSW 2555 (the Premises)
Background
A.Pursuant to a residential tenancy agreement dated 14 April 2008 entered into by the Commonwealth ... and You in respect of the Premises, the Commonwealth has granted You a right to occupy the Premises on the terms contained in the residential tenancy agreement and the Act.
B.The original fixed term of the residential tenancy agreement has expired prior to the date of this notice and as a result You occupy the Premises as a tenant under a periodic agreement (the Tenancy Agreement) for the purposes of the Act.
Notice
The Commonwealth hereby gives you notice under section 85 of the Act:
1)terminating the Tenancy Agreement in respect of the Premises on 15 June 2015 (the Termination Date); and
2)that You are required to give vacant possession of the Premises to the Commonwealth by the Termination Date.
This notice is also served for the purposes of clause 42.2 of the Tenancy Agreement and it is served without prejudice to any other rights the Commonwealth may have under the Tenancy Agreement, at law or in equity.
Ms Watkins did not agree to vacate the premises. As noted above, Ms Allen no longer lives at the premises.
On 29 June 2015, the Commonwealth applied to the FCCA for orders terminating the residential tenancy agreement and for vacant possession. Ms Watkins opposed the orders sought by the Commonwealth on various grounds, including that the 2010 RTA did not apply to the premises because it was predominantly used for non-residential purposes; that her son had a right of occupation; and that the Court should decline to exercise its asserted discretion to terminate the residential tenancy agreement. Ms Watkins also contested the jurisdiction of the FCCA, submitting that the law purporting to confer jurisdiction and to be applied was invalid.
The primary judge made orders and delivered reasons on 21 December 2015, the orders being that:
1.The residential tenancy agreement in relation to the premises at 404721, 195 Longleys Road (Formerly Lot 55), Badgerys Creek NSW 2555 (“Premises”), comprising part of folio identifier Lot 1 DP 838361 be terminated with immediate effect.
2.Vacant possession of the Premises be given to the Applicant on or before 28 December 2015.
3.The order for vacant possession be suspended until 8 February 2016.
This is an appeal against those orders. For the reasons stated below, we would dismiss the appeal.
On 22 January 2016, Robertson J ordered that Orders 2 and 3 of the primary judge be stayed on condition that the appellant prosecuted her appeal with expedition and complied with certain directions: 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 she was not able to present her case and that a refusal to allow an adjournment would result in a serious injustice to her.
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 her case. Although it was submitted on behalf of the appellant that she 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 her 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 a 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 in each case; she knew her own material; she knew her own case; she knew the respondent’s submissions; and she had replied to those submissions in writing.
We have taken into account the material in the affidavits sworn by Ms 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 primary judge (at [7]) referred to, and did not repeat, his discussion in Commonwealth of Australia (as represented by theDepartment of Infrastructure and Regional Development) v Odzic & Anor [2015] FCCA 3363 (Odzic) of the relevant statutory framework, including the jurisdiction conferred by s 10AA of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act), ss 81, 83, and 84-95 of the 2010 RTA and ss 7 and 8 of the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument).
Constitutional and jurisdictional issues
Ms Watkins raised much the same constitutional and jurisdictional issues as the tenants in the other matters contesting the termination of their tenancies on Commonwealth land within, or proximate to, the airport site. The primary judge, at [17] in Watkins, rejected those arguments for the reasons his Honour gave in Odzic at [40]-[44], where his Honour adopted what he had said 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 held, in Rigney at [61], that there was, at the date of the application, a matter within the meaning of Ch III of the Constitution and s 5 of the FCCA Act that the FCCA was required to resolve. His Honour, in Odzic at [44], noted that s 85 of the 2010 RTA, not s 94 (as in Rigney), was applicable in the Odzics’ case (as it also is in Ms Watkins’ case). This was because the Odzics (and Ms Watkins) had not been in continual possession of the premises for 20 years or more. His Honour found that, as the Odzics had “put in issue whether, as a matter of fact, a termination notice was given to them”, there was “an existing controversy which, when decided by the Court, will determine the respective rights of the Commonwealth and the Odzics” (Odzic at [44]).
In Rigney, the primary judge rejected the submission that s 10AA of the FCCA Act attempted to grant the FCCA executive, as opposed to judicial, power (Rigney at [77]). His Honour held that s 10AA of the FCCA Act was an exercise of the legislative power conferred by the Constitution on the Parliament (Rigney at [83] and [94]). His Honour held that s 51 of the Constitution conferred legislative power to make the applicable laws and that the Instrument was not “unauthorised and ultra vires” that Commonwealth law. His Honour also held that the applicable Commonwealth law did not effect an acquisition of property otherwise than on just terms contrary to s 51(xxxi) of the Constitution (Rigney at [114]).
In Odzic at [41]-[42], his Honour specifically rejected the Odzics’ submission, referring to Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410 (Henderson), that “for no sensible explanation the lessor has decided to sue the Respondents in its own courts”. His Honour stated that “the issues in the proceedings were the polar opposite to those in this case”, where “the Commonwealth is not seeking to restrain proceedings brought by a landowner in a state Tribunal, but is bringing proceedings as a landlord in a Federal Court constituted under Ch III of the Constitution” (Odzic at [42]).
Predominant use of the premises
The primary judge (Watkins at [14]-[16]) also rejected Ms Watkins’ contention that, by virtue of s 7(h) of the 2010 RTA, the 2010 RTA did not apply because the land was predominantly used for agricultural purposes. The primary judge (at [12]) referred to his consideration in Rigney at [8]-[23] about the meaning of s 7(h) of the 2010 RTA.

The primary judge did not accept Ms Watkins’ evidence that when she negotiated the residential tenancy agreement with the agent for the Commonwealth, she told the agent that the “predominant use of the premises is for grazing and rearing my horses”. Whilst his Honour accepted that she probably discussed her intention to have horses on the land, he did not accept that she in fact used terms that reflected the provisions of the 2010 RTA. His Honour found that she had fabricated this evidence, stating (at [14]) that:
[I]t seems remarkably convenient that she used terms 7 years ago that reflect the provisions of the [2010 RTA]. If she was aware of those terms, which I doubt, it raises the question of why she would want a residential tenancy agreement that allowed for horses rather than an agricultural lease that allowed for tenancy by humans. ... In any event, it does not prove anything. What is said about the intended use of premises does not establish the actual use to which those premises are eventually put.
The primary judge held (at [16]) that the premises were not predominantly used for agricultural or business purposes and the 2010 RTA applied. His Honour noted (at [15]) Ms Watkins’ evidence that she had horses on the premises and 12 pure bred cattle dogs. He also noted her evidence that she bred the dogs for sale and also sold horses. Further, his Honour noted (at [15]) her evidence that the horses were an essential part of the residential tenancy agreement because her son, David, loved horses and “being around horses and agriculture is an important part of his rehabilitation, lifestyle and care”. His Honour added “[a]lthough there is some tension between David’s love for horses and Ms Watkins’ evidence that she sells horses, I accept that the two can co-exist and do in this case”. The primary judge accepted (at [16]) that “breeding puppies and keeping horses for sale might constitute an agricultural or business activity” but stated that, “in the absence of any details of the size or scale of that activity”, he could not be satisfied that the use of the premises was predominantly for that purpose. In contrast, his Honour noted, “the Premises have always been used by Ms Watkins and her son for residential purposes, as did [Ms Allen] when she lived there” (at [16]).
Application of s 85 of the 2010 RTA
The primary judge found that when the fixed term of the residential agreement expired, the residential tenancy agreement continued as a periodic agreement and that, since Ms Watkins had not been in continual possession of the property for 20 years or more, s 85 of the 2010 RTA applied to the termination of the residential tenancy agreement by the Commonwealth (Watkins at [21]-[23]).
The primary judge’s approach to determining whether or not to make a termination order under s 85 of the 2010 RTA is set out in Watkins at [18]:
In light of the statutory scheme outlined in Odzic, the first step in the resolution of these proceedings is to determine whether the duty to make a termination order arises. In essence, that requires consideration of whether a notice of termination has been given in terms required by the [2010 RTA] and whether the respondents have vacated the property as required by the notice. The second step is to determine what the appropriate date is for vacant possession to be given. This involves some balancing of the parties’ interests. Part of this consideration could also involve the application of s.114 of the [2010 RTA] to suspend the date of the order for vacant possession.
Service of notice of termination
The primary judge rejected (at [4]) Ms Watkins’ contention that she had granted her son, David, a right of occupation by way of sub-lease. His Honour found that David was not party to, and had no right to occupy the premises under, a residential tenancy agreement; that he was not a person to whom such right passed by transfer or operation of the law; and that he was not a sub-tenant of Ms Watkins’ (referring to s 3 of the 2010 RTA). The primary judge held (at [4]) that the evidence did not establish that David was a tenant or co-tenant within the meaning of the 2010 RTA; and that there was no evidence that the Commonwealth had given its prior written consent to the grant of a sub-lease, as required by s 74 of the 2010 RTA.
The primary judge (at [20]) noted that the term of the agreement was for 13 weeks, commencing 8 April 2008 and expiring on 18 July 2008. The primary judge also noted (at [21]) that it was a term of the residential tenancy agreement that the tenants could stay in the premises at the same or increased rent, but otherwise under the same terms unless or until the agreement was ended in accordance with the Residential Tenancies Act 1987 (NSW). The primary judge stated that this meant that, at the end of the term, the agreement continued as it had before, but without a fixed term. Accordingly, the primary judge concluded (at [22]), referring to ss 3 and 18 of the 2010 RTA, that the agreement was a periodic tenancy within the meaning of the 2010 RTA.
In this circumstance, as noted above, the primary judge held (at [23]) that s 85 of the 2010 RTA applied to the Commonwealth’s termination of the residential tenancy agreement with the present appellant, as she had not been in continual possession of the premises for 20 years or more. Having regard to the requirements of the 2010 RTA, his Honour was satisfied (at [26]) that a notice of termination had been given in Ms Watkins’ case in accordance with that Act. His Honour was further satisfied that the “matters in sub-s.85(3) ... have been established and the residential tenancies agreement between the parties must be terminated” (at [28]).
The primary judge rejected (at [32]) Ms Watkins’ argument that the power to make a “termination order” under s 85 of the 2010 RTA was discretionary, for the reasons his Honour gave in Odzic at [82]-[84]. His Honour there rejected that argument because his Honour considered that the word “must” in s 85(3) unambiguously meant that if the FCCA is satisfied of these matters “there is only one decision that can be made, namely, the making of a termination order”(Odzic at [82]-[84]). A “termination order” is defined in s 80 of the 2010 RTA to mean “an order terminating a residential tenancy agreement together with an order for possession of the residential premises”.
Appropriate date on which vacant possession was to be given
The primary judge then considered the appropriate date for vacant possession to be given to the Commonwealth. As set out above, his Honour acknowledged (at [18]) that this would involve “some balancing of the parties’ interests” and “could also involve the application of s 114” of the 2010 RTA, which provides for the operation of an order for possession to be suspended.
The primary judge began his inquiry by examining the history of the Commonwealth’s land acquisition program in the Badgerys Creek area, referring in this regard to his consideration of this issue in Odzic at [59]-[81], and stating his findings (Watkins at [30]) that:
a)the development of a further airport in Sydney is of the general importance for both the economic and social wellbeing of Western Sydney, if not this country;
b)significant time, effort and money has already been put into preparation of the site for the future development of the airport and the continued presence of tenants on the airport site is to increase the amount of costs likely to be incurred by the Commonwealth in that development;
c)the safety of individual tenants will decrease as more and more tenants vacate the site; and
d)Ms Watkins has been on notice since at least the beginning of the current residential tenancy agreement of the possibility of the use of the land in Badgerys Creek as an airport and the consequent need for her to give vacant possession to the Commonwealth for that purpose. That awareness was heightened by correspondence in October 2014 from the agents for the Commonwealth and put beyond doubt by the notice of termination served in November 2014.
In view of the challenge made by Ms Watkins to his Honour’s findings, it is perhaps helpful to summarise briefly his Honour’s account as it appears in Odzic at [59]-[81]. As his Honour there noted, Mr Peter Robertson, a General Manager at the Department of Infrastructure and Regional Development, gave evidence about the history of the Commonwealth’s land acquisition program in the Badgerys Creek area. 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 for the project and project timeframes.
The primary judge in Odzic described the reasons Mr Robertson gave in evidence as to why the Commonwealth urgently required vacant possession. The reasons given by Mr Robertson were:
(a)to enable the Commonwealth to comply with its project timetable;
(b)the growing incompatibility of continued residential accommodation with the ongoing investigation and demolition works, in terms of cost and delay impacts on the work at the site; and
(c)concerns as to the safety and security of the remaining tenants and the site.
The primary judge summarised Mr Robertson’s evidence in which he explained that planning for an airport requires substantial on-site technical work, including extensive investigations to support environmental assessment and geotechnical work by engineers and other consultants. Mr Robertson’s evidence was that, since some tenants remained in occupation, the work had either been tailored to parts of the site in the possession of the Commonwealth or the Commonwealth had liaised with tenants to ensure that testing could be conducted safely without unnecessary disturbance. The primary judge noted that Mr Robertson’s evidence was that the planning, assessment, site management and preparation activities for the airport site were being undertaken on a “whole of site” basis for all of the land to be included in the airport site.
Also in Odzic, the primary judge summarised Mr Robertson’s evidence concerning the process for accessing individual residential tenant blocks, which Mr Robertson described as being “extensive and time consuming”. His Honour also summarised Mr Robertson’s evidence regarding the timeframe for clearing the site and demolition activities. His Honour noted Mr Robertson’s evidence that, as at 22 October 2015, 117 of an estimated 163 tenants had vacated the airport site and that, once the airport site was vacated and the demolition program completed, it would be significantly easier and less costly to secure the whole site.
The primary judge referred to Mr Robertson’s cross-examination, noting that Mr Robertson had “accepted that his statement that the airport site was becoming increasingly derelict was a bit strong”, but that his evidence was otherwise unaffected. The primary judge found Mr Robertson to be a truthful witness and accepted his evidence.
The primary judge then went on in Watkins to consider the other matters on which Ms Watkins relied on the basis that they might inform the question of the appropriate date by which vacant possession of the premises ought to be given to the Commonwealth. His Honour identified nine matters on which Ms Watkins relied. These matters, and the primary judge’s conclusions in relation to each, are set out below.
(1) Hardship caused by the proposed termination and/or eviction
The primary judge rejected Ms Watkins’ claim that the “proposed termination and/or eviction will cause hardship to the Respondents”, on the basis that there was “no direct evidence of any hardship to the respondents by an order requiring vacant possession to be given by a particular date” (at [32(a)]).
The primary judge accepted that there were a number of animals on the premises that would need to be moved and that Ms Watkins’ son, David, had “some form of disability, though its nature and extent are not disclosed in the evidence” (at [32(a)]). His Honour also noted Ms Watkins’ evidence that she was attempting to move to the Hunter Valley where her parents lived but had “not been able to follow up any leads”. His Honour accepted that “all these matters impact[ed] on Ms Watkins and her son” but he did not accept that they would cause particular hardship or assist in identifying the appropriate date by which vacant possession ought to be given. His Honour commented that the appellant’s “plan to move to the Hunter Valley might take a little time to come to fruition, but she has not given any details of the leads she refers to or why she has been unable to follow them up” (at [32(a)]).
(2) The cost of moving and finding alternative premises
The primary judge held that there was no evidence to support Ms Watkins’ claim that the cost of moving and finding alternative premises would be $20,000 including the purchase of containers and building kennels and stables (at [32(b)]).
(3) Adverse effect on Ms Watkins’ own health and livelihood and that of her son
The primary judge also held that there was no evidence to support Ms Watkins’ claim that the proposed orders would, if made, adversely affect her own health and that of her son (at [32(c)]). As we have said, his Honour accepted that David had some form of disability, but added that there was no evidence to indicate what it was and whether it might be affected by moving to different premises at some time in the immediate future. His Honour stated, however, that he had “made some allowance for it in determining whether, and for how long any order should be suspended” (at [32(c)]).
(4) Unduly brief period for vacating the land
The primary judge noted Ms Watkins’ claim that “[h]aving regard to the length of occupation of the lands in question and the property of the Respondents, the period for vacating the lands is insufficient and unduly short” (at [32(d)]). His Honour rejected this claim on the basis that Ms Watkins had “been on notice of the need to vacate for over a year”, and that there was “nothing beyond mere assertion to suggest that that is inadequate time to prepare to vacate” (at [32(d)]). His Honour noted Ms Watkins’ evidence that she had a litter of puppies that were not old enough to be moved until the end of June 2015, but observed that that date had long since passed and there was “no evidence of any other matter that might require further time within which to relocate” (at [32(d)]).
(5) Lack of urgency and pending commercial requirement
For the same reasons as he had rejected this submission in Odzic at [95]-[101], the primary judge rejected (Watkins at [32(e)]) Ms Watkins’ submission that there was no urgency for the Commonwealth to assume vacant possession because the Commonwealth had given “a 99 year right of refusal to open or use Badgerys Creek as a commercial airport… to Macquarie Airports”; that Macquarie Airports has no commercial use or plan “to operate or use Badgerys Creek as an airport at any time in the foreseeable future including the next 30 years”; and that “there was no pending commercial requirement for the orders for termination for over 12 years”. Briefly, his Honour found (Watkins at [32(e)]) that the submission was not supported by the evidence before the Court. In Odzic, his Honour held that none of the documents on which the Odzics relied in this regard was specifically addressed in their submissions (Odzic at [97]) and that none of the matters to which the Odzics referred undermined Mr Robertson’s evidence.
(6) Lack of suitable or available alternative leaseholds
Ms Watkins claimed that there were no suitable or available alternative similar leaseholds in the region of Badgerys Creek or Luddenham for her to rent or occupy on the same or similar terms.
The primary judge observed that this was “one of the generic claims made on behalf of the tenants in the proceedings heard concurrently with [her] matter” (at [32(f)]). His Honour noted that, “[i]n light of Ms Watkins’ stated plan to move to the Hunter Valley, it has no relevance to her”. His Honour added (at [32(f)]:
In each of the proceedings there was a folder of material in evidence (exhibit E) that included some documents relevant to the availability of accommodation in the Greater Western Sydney region. For the reasons just given, this evidence does not relate to Ms Watkins’ circumstances. In any event, the material in the folder does not establish that there is no suitable alternative accommodation available for rent within a reasonable period.
(7) Failure to offer compensation
Ms Watkins complained that the Commonwealth had not offered her any compensation for “the loss of the Respondents’ property affixed to the land or otherwise and for the costs of complying with the eviction notices” (at [32(g)]). The primary judge held that there was no basis in evidence or submissions for any right to compensation. His Honour also stated that it was not clear how such a right might bear upon the determination of an appropriate date for vacant possession of the premises, especially as there was no evidence about Ms Watkins’ financial means beyond the fact that her source of income was the pension and the sale of dogs and horses.
(8) Express termination provision in tenancy agreement
Ms Watkins submitted that because there was an express termination provision in the residential tenancy agreement, the rights of the parties were governed by that clause. The primary judge (at [32(h)]) stated that his Honour had dealt with and rejected that argument, and a similar argument, in Odzic at [106]-[109], noting that the express provisions were sufficiently similar in both matters.
In Odzic it was submitted by the appellants that cl 42.2 of their tenancy agreement (which was relevantly the same as cl 42.2 of Ms Watkins’ residential tenancy agreement) was an express provision regarding termination, and that their rights were governed by that clause. It was further submitted that, under that clause, in order for the Commonwealth to have the right to terminate the agreement, the Commonwealth had to require vacant possession, and that could not occur without a decision of the relevant Minister. The primary judge rejected this submission, on the basis, first, that the agreement was subject to the 2010 RTA and, in consequence, any termination must take effect under Pt 5 of that Act; and, secondly, that Mr Robertson gave evidence that the Commonwealth required vacant possession of the premises, thus meeting “the condition precedent ... to the right of the Commonwealth to terminate the [a]greement by six months’ written notice” (Odzic at [108]).
(9) Service of notice before the introduction of s 10AA of the FCCA Act
The primary judge rejected (at [32(h)]) Ms Watkins’s submission that “[b]ecause the termination notice was served before the introduction of s 10AA into the FCCA [Act], it was not effective for the purposes of the Commonwealth law”, for the same reasons he had rejected this submission in Odzic at [110]-[111]. In that case, the primary judge held that “[a]n Act does not have retrospective application simply because it requires consideration of past events. Further, just because notice was given ‘under’ the [2010 RTA] before this Court ha[d] jurisdiction in relation to Commonwealth tenancy disputes does not mean that it was not given ‘under’ the Act once the Court did have that jurisdiction” (Odzic at [111]).
The primary judge concluded (Watkins at [33]) that Ms Watkins had shown “no substantial basis for opposing the orders sought by the Commonwealth”. At [34], his Honour stated that:
In light of the circumstances relied on by the Commonwealth as summarised above and the fact that Ms Watkins has put forward nothing of any substance in opposition to the orders sought, I am satisfied that the appropriate date on which Ms Watkins is to give vacant possession of the Premises is 28 December 2015, but that the order for vacant possession should be suspended until 8 February 2016. In fixing that date, I have taken into account the time of year, even though that was not addressed by either of the parties. I have also taken into account the disability of Ms Watkins’ son, David.

Accordingly, his Honour made the orders set out at [10] above.
Grounds of appeal
Although Ms Watkins and Ms Allen were named as respondents in the FCCA proceeding, as noted above, Ms Allen did not take any part. By the notice of appeal filed in this matter, only Ms Watkins sought to appeal from the judgment of that Court.
Ms Watkins’ proposed amended notice of appeal contains the following grounds of appeal:
(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 the termination notice had been given.
(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 28 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 making tenancy orders having final effect which in the circumstances was an abuse of process and/or has prejudiced the appeal of the Appellant.
(11)~~The primary judge erred in deferring costs or not making any orders as to costs before pronouncing final judgment.~~
(12)The primary Judge erred in not having or having sufficient regard to expert evidence including but not limited to that of Simone Fogarty.
(13)The primary Judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their claims and in doing so, not balancing the interests of both parties.
(14)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.
(15)The primary Judge erred in stating the Respondents 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 reasonably believed Badgerys Creek was not being considered as a site for the airport.
(16)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.
(17)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.
(18)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.
(19)~~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 identify proposed new grounds of appeal raised by Ms Watkins for which leave was required. The paragraphs struck through, grounds 6, 11 and 19, reflect the grounds in the proposed amended notice of appeal which 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.
The proposed amendments, apart from paragraphs 14 and 15, 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 Ms Watkins’ case had been presented below.
Since the application to amend to add grounds 14 and 15 was not opposed, we would grant leave so to amend.
It is therefore necessary to rule on the application to amend to add grounds 10, 12, 13, 16, 17 and 18. 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; 229 FCR 153 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 Act 1974 (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 where it is expedient and in the interests of justice that that should be 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, we would refuse leave to amend to add proposed ground 10, that the primary judge erred in making tenancy orders having final effect which in the circumstances was an abuse of process and/or has prejudiced the appeal of the appellant. First, once the trial concluded and, after due consideration, the primary judge had reached a decision on the matters in dispute between the parties, his Honour was obliged to make final orders that gave effect to that decision (as explained in his reasons for judgment). There may be unusual or particular circumstances in which the obligation to make final orders on reaching a decision after trial does not arise, but this case is not one of them. As the primary judge’s reasons show, his Honour decided, after trial and due consideration, that the Commonwealth should succeed in its application, Ms Watkins having failed to make out her grounds in opposition. Further, the appellant did not acquire a right of appeal to this Court from his Honour’s decision until his Honour made the orders that gave effect to his decision on the matters in dispute between him and the Commonwealth. Proposed ground 10 does not, so far as we can see, correspond to any submission made by Ms Watkins at first instance, to the effect the primary judge should not make orders in the terms sought by the Commonwealth in the event that the Commonwealth was the successful party. The result is that the appellant has not indicated, and we cannot discern, any tenable basis for the proposed ground of appeal.
We would also refuse leave to amend to add ground 12, that the primary judge erred in not having or having insufficient regard to expert evidence including but not limited to that of Ms Simone Fogarty. After judgment was reserved and in response to the Court’s request to the parties, the Commonwealth provided a note to the effect that:
(a)No evidence was admitted in any of the Federal Circuit Court proceedings from which the Under 20 Appeals are brought (the Under 20s Proceedings Below) from any of:
ŸMr Azar;
ŸMs Simone Fogarty; or
ŸMr Lopco Neskovski.
(b)No party sought to adduce evidence from Mr Azar in the Under 20s Proceedings Below.
(c)The appellants sought to rely in the Under 20s Proceedings Below on evidence from Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski which was purported by the respondents in those proceedings to be expert evidence, but all such evidence was specifically rejected by the trial judge.
(d)The attempt to rely on the purported expert evidence of Ms Fogarty, Ms Uren, and Mr Neskovski, together with the rejection of that evidence by the trial judge is recorded at pages 127 and 167-168 of the transcript of the hearing of the Under 20 Proceedings Below, but the relevant portion of the transcript was not included in the appeal book and was not therefore evidence in the appeals.
(e)The Respondent did not propose inclusion of the relevant portion of the transcript in the appeal book because the rejection of the evidence by the trial judge was not challenged in the Notices of Appeal.
In her note, also provided in response to the Court’s request, the appellant confirmed that the primary judge declined to admit the evidence of Ms Simone Fogarty, Ms Leanne Uren, and Mr Lopco Neskovski. The appellant did not dispute that no party had sought to adduce evidence from Mr Azar in her proceeding. We proceed to consider the proposed ground on this basis.
Before doing so, we observe that the appellant submitted, in the note to which we have just referred, that proposed ground 12 should be read with ground 6, that the primary judge erred in not admitting evidence of the appellant. We observe, however, that the appellant specifically abandoned that ground: see document headed “Corrected – appellant’s abandoned grounds of appeal” provided to the Court on 27 April 2016; see also appeal transcript p 180. So far as the appellant’s note complained about a ruling or rulings by the primary judge concerning the evidence of Ms Simone Fogarty, Ms Leanne Uren or Mr Lopco Neskovski, this was not raised in any ground or proposed ground of appeal.
Proposed ground 12 finds no basis in the proceeding before the primary judge concerning Ms Watkins or in his Honour’s reasons for judgment in relation to her. The primary judge did not consider any expert evidence in Ms Watkins’ case because none was admitted into evidence in her case in the FCCA. Since no evidence of the kind referred to in proposed ground 12 was before him, the primary judge cannot have erred in the way suggested in that proposed ground. We also note that the Commonwealth did not seek to rely on the evidence of Mr Azar in Ms Watkins’ case, presumably because the Commonwealth considered that his evidence was not relevant to the issues in dispute.
We also note that, in his reasons for judgment in Odzic at [97] (which the primary judge in Watkins referred to at [32(e)]), his Honour stated that he had regard to a folder of material that included some documents that his Honour considered relevant to arguments regarding a pending commercial requirement for termination. Even if this material were characterised as expert evidence (though it is not), it is clear from his Honour’s reasons that he considered this material carefully before making relevant findings. Also, his Honour in Watkins at [32(f)] referred to material tendered in Ms Watkins’ case in relation to the availability of accommodation in the Greater Western Sydney region. Once again, even if this material were characterised as expert evidence (though it is not), it is clear from his Honour’s reasons that, although he found that the evidence did not relate to Ms Watkins’ circumstances, he examined it carefully, and found that it did not establish that there was no suitable alternative accommodation available for rent within a reasonable period in the relevant region. The present appellant made no submissions that his Honour erred in this latter regard.
In relation to proposed ground 13, that the primary judge erred in accepting the Commonwealth’s urgent need for vacant possession when there was no real evidence to support their 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 16, that the primary judge erred in accepting the Commonwealth had provided satisfactory assistance for relocating by Ms Wendy 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 tenants, 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 Ms Watkins. In her case, the primary judge did not make any finding about relocation assistance provided by the Commonwealth by Ms Salkeld or anyone else. Secondly, the proposed ground does not correspond to a ground taken by Ms Watkins 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 17, that 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, in our opinion leave to amend to add this ground should be refused. It was not a matter raised in this case before the primary judge and it is clearly a matter on which evidence could have been adduced.
In relation to proposed ground 18, 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, leave to amend to add this ground should also be refused. Although the appellant raised the issue of compensation at first instance, the primary judge (at [33(g)]) found that Ms Watkins had provided no basis in evidence or submissions to support the existence of any obligation on the Commonwealth’s part to offer to compensate her. The submissions on behalf of Ms Watkins on appeal did not address this claim or proposed ground of appeal, which has no prospects of success.
Parties’ submissions – common issues
The common issues were identified by the appellant as, first, a separation of powers issue; secondly, that there was no “matter before the FCCA”; thirdly, that there was no power in s 51 of the Constitution or other legislative power to make the amendments to the FCCA Act; fourthly, that the Instrument was invalid; fifthly, 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 sixthly, that there was apprehended institutional bias.
The revised written submissions of the appellant 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 Act2003 (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 does 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.
Part 5 of the 2010 RTA dealt with the termination of residential tenancy agreements. 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 is terminated and by which vacant possession of the residential premises is 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.
Part 5 included s 82 dealing with the requirements of termination notices:
(1)       A termination notice must set out the following matters:
(a)       the residential premises concerned,
(b)the day on which the residential tenancy agreement is terminated and by which vacant possession of the premises is to be given,
(c)if the notice is not given under section 84, 85, 96 or 97, the ground for the notice,
(d)       any other matters prescribed by the regulations.
(2)A termination notice must be in writing and be signed by the party giving the notice or the party’s agent.
(3)A termination notice for a periodic agreement may specify a day other than the last day of a period for the payment of rent as the termination date.
Part 5 also included ss 84 and 85, which provided as follows:
84 End of residential tenancy agreement at end of fixed term tenancy
(1)A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.
(2)The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended.
85 Termination of periodic agreement
(1)A landlord may, at any time, give a termination notice for a periodic agreement.
(2)The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.
(3)The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.
(4)This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.
Part 6 of the 2010 RTA included the following provisions:
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
Whether infringing separation of powers principle
Notwithstanding reference to a separation of powers issue in the revised written submissions on common issues, Ms Watkins did not apparently rely on the separation of powers argument and it does not therefore appear necessary to consider the argument in her appeal. The particular argument, that the orders sought by the Commonwealth in its application in the FCCA were beyond power as involving an exercise of non-judicial power by a federal court contrary to Ch III of the Constitution, was apparently made only in the appeals in which the tenants of land within the airport site had been in continual possession of the same residential premises for 20 years or more (the 20 years and over appeals). In that circumstance the orders sought by the Commonwealth required an exercise of power under s 94(1) of the 2010 RTA and s 10AA of the FCCA Act, which it was submitted by the tenants in those cases involved an exercise of non-judicial power by a federal court.
Section 94(1), which was a focus of the separation of powers argument, was inapplicable in Ms Watkins’ case, where she had been in possession of the premises for less than 20 years. In her case, the orders made by the primary judge and sought by the Commonwealth were in exercise of s 85 of the 2010 RTA and s 10AA of the FCCA Act. Section 85 provided for the termination of a periodic agreement, which is what the agreement had become (as discussed hereafter). After receiving an application under the 2010 RTA in a proceeding commenced after the minimum notice period, the State Tribunal or the FCCA must, by virtue of s 85(3) of the 2010 RTA, make a termination order if it is satisfied that the termination notice was given in accordance with s 85 and that the tenant has not vacated the premises as required by the notice. This involved no exercise of discretion such as that impugned in the related appeals involving s 94(1) of the 2010 RTA and s 10AA of the FCCA Act.
In Ms Watkins’ case, as in the case of other tenants who had been in possession of the leased premises for less than 20 years, a question of the appropriate exercise of discretion arose at a different point. In a case in which the FCCA exercises power under s 85 of the 2010 RTA and s 10AA of the FCCA Act, s 8 of the Instrument modifies the 2010 RTA, with respect to the conferral of discretion “in relation to the day vacant possession of the premises is to be given to the landlord”. Such is the effect of s 8(2) of the Instrument which provides that the 2010 RTA must be read as including a provision that, if the FCCA 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. The exercise of discretion in relation to the day vacant possession is to be given does not, on any view, involve a conferral of non-judicial power.
In case we have misunderstood the appellant’s submissions, however, we can discern no error in the conclusion reached by the primary judge that any contention that the relevant laws of the Commonwealth impaired the separation of powers principle was to be rejected (Watkins at [17], adopting Odzic at [43]). We also note the terms of s 5(3) of the Instrument which state that nothing in ss 5 to 10 of the Instrument has effect so as to confer non-judicial power on the FCCA, unless the non-judicial power is incidental to the exercise of judicial power by that court.
Further, we observe that we cannot derive any particular assistance from what was said by Mason J in Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 at 61, notwithstanding the reference to that case made by counsel for the appellant in oral submissions. 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 concerns the powers of a federal court created by the Parliament under Ch III. At 61, Mason J said that the earlier and narrower approach took insufficient account of the States’ legislative competence to alter the structure and organisation 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 can derive no present assistance from 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.
We would reject the submission, if made in Ms Watkins’s case, 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 has 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 v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 (Brandy) at 267 Deane, Dawson, Gaudron and McHugh JJ said, with reference to Precision Data, that there were functions which, when performed by a court, constitute the exercise of judicial power but, when performed by some other body, do not.
Further, if the point arises in Ms Watkins’ appeal, we would also reject the contention more clearly advanced in the 20 years and over appeals 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.

The reasons for judgment of the primary judge demonstrate that the primary judge had regard to the evidence and the submissions advanced by Ms Watkins concerning her circumstances and that of her son. His Honour noted, in a number of contexts, that Ms Watkins’ evidence lacked detail or specificity. It is apparent, however, that he took account of her evidence as best he could. It is also clear that his Honour had regard to the fact that Ms Watkins’ son had a disability and, when making his orders on 21 December 2015, he allowed for this in ordering that his order for vacant possession be suspended until 8 February 2016. We can discern no error in what his Honour did, particularly in the circumstances where, as his Honour found there was no evidence to indicate the nature of Ms Watkins’ son’s disability and the effect of a move to different premises in the immediate future. Ms Watkins did not contest this evidentiary finding and her counsel did not refer us to any evidence before the primary judge concerning the nature of Ms Watkins’ son’s disability and the effect on him of an imminent move. We were not taken to any evidence before the primary judge that might have shown that the circumstances of her son made it “very difficult” for Ms Watkins to find alternative residential rental premises, as she claimed in her submissions in this Court. Reference was made in this connection, however, to a further affidavit made by Ms Watkins of 13 January 2016, on which she sought to rely in this appeal. We discuss this affidavit hereafter.
Having regard to the circumstances of Ms Watkins’ case, we cannot see error in the fact that his Honour made allowance for the position of Ms Watkins and her son in his order suspending the order for vacant possession. Counsel for Ms Watkins did not identify any particular appellable error in his Honour’s exercise of discretion in this regard and we are unable to see one. It is apparent from his Honour’s reasons that he did not confine his consideration of hardship to the making of this order but that he also considered the issue of hardship to Ms Watkins and her son arising from “the proposed termination and/or eviction” with respect to orders in relation to the day vacant possession of the premises was to be given to the Commonwealth.
There is no basis shown for the appellant’s contention that the primary judge’s decision to allow more time to vacate the property on account of the holiday season occasioned the appellant detriment.
Further, we would reject the appellant’s submission that the primary judge had erred in finding there was no evidence to support the appellant’s claim that the cost of moving and finding alternative premises would be $20,000. Ms Watkins apparently referred in written submissions to her affidavit of 31 May 2015, but there is nothing in that affidavit to support the claim.
We cannot see that Ms Watkins’ submission that she “said she had no funds to move to the Hunter Valley” discloses any relevant error in his Honour’s decision. In any event we observe that his Honour also addressed the question of Ms Watkins’ case in relation to the availability of accommodation in the Greater Western Sydney region.
As we have seen, the primary judge treated the appellant’s challenge to the evidence of Mr Robertson, particularly as to urgency and commercial necessity, as relevant to his exercise of discretion in making orders in relation to the day vacant possession was to be given. As already noted, his Honour also considered the interests of the appellant at this stage too. No party suggested that it was not open to his Honour to do so.
We have already considered and rejected the appellant’s submissions that Mr Robertson’s evidence should have been rejected, and that the primary judge gave no adequate consideration to the particular needs of the appellant. His Honour’s reasons for judgment demonstrate that he considered the evidence before him, as well as the parties’ submissions, and in so doing considered the parties’ competing needs and interests. As indicated, we discern no appellable error of the kind referred to in House v The King. We accept that, as the respondent submitted, his Honour’s orders included that vacant possession be given on or before 28 December 2015, but that the order for vacant possession be suspended until 8 February 2016; and that these orders were lawfully made, particularly having regard to the definition of “termination order” in s 80 of the 2010 RTA. We do not accept the argument put to the Court by counsel for the appellant at the hearing that the terms of the orders of the primary judge were inconsistent with Pt 6 of the 2010 RTA.
Disposition of grounds in the amended notice of appeal
The foregoing consideration leads to the conclusions that grounds 1 to 3 (discussed at [89]-[136] above) must fail. So too must ground 5, so far as it relied on the arguments considered in those paragraphs. Grounds 4 fails for the reasons set out at [200]-[202]. Ground 5 also fails for the same reasons. Ground 7 fails as discussed in [205]-[212] above. Ground 8 fails as discussed at [203]-[204] above. Ground 9 fails for the reasons given at [144]. Ground 13 fails for the reasons set out at [152]-[165] and [211].
Grounds 14 and 15 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 she really believed that Badgerys Creek was not being considered as a site for the airport. As to the first of these matters, ground 14, 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, the basis on which the Commonwealth sought the termination order was in respect of the premises which were to form part of an airport. 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 8(2) of the Instrument, to take into account the documents submitted by the appellant in relation to the history of decision-making. In any event, we note that, in Odzic at [59] (adopted in Watkins at [30]), 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. His Honour noted 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 15, 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 made on 14 April 2008 with a term of 13 weeks and contained cl 42 which we have set out at [5] above. To the extent the appellant in this case advanced the submission that because the lessor did not plead that express provision for termination, it was legally irrelevant to rely upon it in evidence, we would reject that submission. As the primary judge pointed out, the application to that Court was not a pleading.In the absence of probative evidence as to the appellant’s thinking, this ground must fail, especially in light of cl 42 of the agreement entered into in April 2008.
We note that, for the reasons already stated, we would not grant leave to amend the notice of appeal to add grounds 10, 12, 16, 17 and 18.
The application to adduce further evidence on appeal
On this appeal the appellant sought to adduce the following further evidence:
1.        Affidavit of Ms Lorraine Watkins dated 13 January 2016;
2.        Affidavit of Ms Sandra Uren dated 6 March 2016;
3.        Further affidavit of Ms Sandra Uren dated 6 March 2016;
4.        Affidavit of Dr Anthony Green dated 9 March 2016;
5.        Affidavit of Mr Kingsley Liu dated 1 February 2016;
6.        Affidavit of Mr Kingsley Liu dated 9 March 2016.
Section 27 of the Federal Court of Australia Act provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings from 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; 94 ATR 376 at [116] and [119] as follows:
[116]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.[117] The Full Court referred to Sobey v Nicol and Davies as Joint and Several Receivers and Managers of the Property of Mercorella and the Scheme and as Joint and Several Liquidators of the Scheme (2007) 245 ALR 389 at 403–404 [68]–[72], which cited what the High Court had said in CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 (in the context of the similarly worded s 93A(2) of the Family Law Act 1975 (Cth)) and which, in Sobey, referred to decisions of the Full Court of this Court including Cottrell v Wilcox [2002] FCAFC 53 at [20]–[24]; Gao v Official Trustee in Bankruptcy [2003] FCAFC 84 at [23]; Freeman v National Australia Bank Ltd (2003) 2 ABC (NS) 32 at 48–50; [2003] FCAFC 200 at [68]–[74] and Ye v Crown Ltd [2004] FCAFC 8 at [157]–[161].
…
[119]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 six affidavits listed above.
Affidavit of Ms Lorraine Watkins dated 13 January 2016
We shall assume that this affidavit was sought to be read in the 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 was relevant to the interlocutory application for a stay. So far as this appeal is concerned, it referred to nothing relevant to this appeal which Ms Watkins has not previously covered in her affidavit before the primary judge or that could not have been adduced before his Honour.
Although Ms Watkins, in this affidavit, identified her son’s diagnosed condition and referred to her efforts to be available for cross-examination, we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. As we have already stated, his Honour’s evidentiary findings (including the finding that Ms Watkins had fabricated part of her evidence) did not depend on there being no cross-examination of Ms Watkins. This affidavit does not, moreover, show in what way or ways relevant to the proceeding Ms Watkins is limited by her son’s condition, notwithstanding her counsel’s submissions to the contrary (see above).
On the assumption we have made, we reject this affidavit.
Affidavit of Ms Sandra Uren dated 6 March 2016
We shall assume that this affidavit was sought to be read in the appeal. The respondent notified objections to it dated 18 March 2016.
This affidavit is of nine paragraphs. In it Ms Sandra Uren sought to annex a document entitled “Western Sydney Infrastructure Plan – Consultation Report” from September 2015, which stated that construction of the Northern Road Upgrade Stage 4 may start in late 2017. Ms Uren then sought to depose at paragraph 9 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 note that this material, if relevant, could have been tendered at the hearing before the primary judge.
Further, 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; would not appear to be relevant to the present appeal; and we are not satisfied that this further evidence would have produced a different result if it had been available at the trial. In the result, on the assumption we have made, 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, of 10 paragraphs, which the appellant sought to rely on in her appeal. The respondent notified objections to it dated 18 March 2016.
In paragraph 5, Ms Uren sought to give evidence about what she said were the deficiencies in the Western Sydney Airport Draft Environmental Impact Statement released in October 2015, 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 the 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 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 shows “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. The first sentence was not relevant to this appeal. As to the paper sought to be annexed, it too was in a general form. It did 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 sought 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 Environmental Impact Statement –Western Sydney Airport (EIS) discussed by Mr Green 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, which involved a statement of opinion in paragraph 39 as to what was or was not “in the economic or societal interest of Australians” were 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 the 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 forty-eight (248) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Robertson and Griffiths.
Associate:
Dated: 2 March 2017

Appeal from:	Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins & Anor [2015] FCCA 3399
File number:	NSD 65 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 power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession – 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 less than 20 years – whether predominant use of premises for the purposes of agriculture or business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85 of the Residential Tenancies Act 2010 (NSW) as modified by the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) – whether error in appropriate date for vacant possession 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 Act1996 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) ss 10AA Federal Court of Australia Act 1976 (Cth) s 27 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, 77, 80, 81, 82, 83, 84, 85, 94, 119, 120, 121 Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth)
Cases cited:	ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Antoun v R [2006] HCA 2; 224 ALR 51 Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376 Australian Fisheries Management Authority v Su [2009] FCAFC 56; 255 ALR 454 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 CDJ v VAJ [1998] HCA 67; 197 CLR 172 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Rigney (No 3) [2015] FCCA 3133 Commonwealth of Australia v SCI Operations Pty Ltd [1998] HCA 20; 192 CLR 285 Commonwealth v Hospital Contribution Fund of Australia [1982] HCA 13; 150 CLR 49 Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52; 229 FCR 153 Forge v Australian Securities and Investments Commission [2006] HCA 44; 228 CLR 45 Fox v Percy [2003] HCA 22; 214 CLR 118 Gronow v Gronow [1979] HCA 63; 144 CLR 513 House v The King [1936] HCA 40; 55 CLR 499 Jain v Matakaiongo (Tenancy) [2011] NSWCTTT 623 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 McGeown v NSW Land and Housing Corporation [2015] NSWCA 23; 17 BPR 34,019 Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67 Paterson v Paterson [1953] HCA 74; 89 CLR 212 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; 195 CLR 1 Precision Data Holdings Ltd v Wills [1991] HCA 58; 173 CLR 167 R v Hughes [2000] HCA 22; 202 CLR 535 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 Shanahan v Scott [1957] HCA 4; 96 CLR 245 Shannon v Commonwealth [2014] FCAFC 108; 318 ALR 420 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 Swain v Residential Tenancies Tribunal of New South Wales (Supreme Court of New South Wales, Rolfe J, unreported, 22 March 1995) Waterhouse v Independent Commission Against Corruption [2015] NSWCA 300 Whisprun Pty Ltd v Dixon [2003] HCA 48; 200 ALR 447 Moore AP, Grattan S and Griggs L, Bradbrook, MacCallum and Moore’s Australian Real Property Law (6th ed, Thomson Reuters, 2016)
Date of hearing:	13 - 15 March 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	248
Counsel for the Appellant:	P E King
Solicitor for the Appellant:	The People’s Solicitors
Counsel for the Respondent:	J Doyle with D W Rayment and A Mitchelmore
Solicitor for the Respondent:	Australian Government Solicitor

JUDGES:	KENNY, ROBERTSON AND GRIFFITHS JJ
DATE OF ORDER:	2 MARCH 2017