ROBERTSON j:
1 In each of these 17 appeals the appellant applies (or the appellants apply) for interlocutory orders staying the orders made by the judge of the Federal Circuit Court of Australia (the primary judge) for vacant possession of each of the premises.
2 The Commonwealth is seeking to take possession of each of the premises to progress the development of the entire site for the Western Sydney airport at Badgerys Creek.
3 In each case, the primary judge made an order for vacant possession but suspended that order until 25 January 2016 in some cases and later dates in other cases.
4 An example of the orders made by the primary judge is as follows:
(1) The residential tenancy agreement in relation to the premises at … ("Premises") 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 25 January 2016.
5 Some of the appellants have been in occupation of his or her or their premises for over 20 years and the others for a shorter period. The significance of the period of 20 years for legal purposes is that s 94 of the Residential Tenancies Act 2010 (NSW) proceeds by reference to a tenant having been in continual possession of the same residential premises for a period of 20 years or more.
6 The appeal in each case is as of right and is brought under s 24 of the Federal Court of Australia Act 1976 (Cth).
7 The application for a stay is made under, primarily, s 29 of the Federal Court of Australia Act which provides as follows:
29 Stay of proceedings and suspension of orders
(1) Where an appeal to the Court from another court has been instituted:
(a) the Court or a Judge, or a judge of that other court (not being the Federal Circuit Court or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and
(b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates.
(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings.
8 The evidence is that as each premises is vacated, the Commonwealth is moving to demolish any structure on the land. As at 19 January 2016, 131 of an estimated 233 properties on the site had been demolished and there were approximately 102 properties "requiring clearance" to use the words in the affidavit of the Acting Assistant Director in the Legal Analysis & Strategy team in the Western Sydney Unit of the Department of Infrastructure and Regional Development, on which the respondent relied.
9 I accept that evidence and the further evidence that a minimum of 5 to 8 months is expected to be required to complete demolition of the structures on the site and that: "This constrained timeframe is only achievable with multiple contractors working concurrently on site with limited unfavourable weather. Delays in vacating properties will delay the process of demolition and this will consequently impact the construction timeframes that the project is planned around."
10 The appellants relied on Flight Centre Ltd v Australian Competition and Consumer Commission [2014] FCA 658 at [9] per Rangiah J as follows, omitting references:
[9] I was not referred to any authorities in which an application for a stay of a pecuniary penalty order had been considered. The application fell to be determined having regard to the nature of the order and upon general principles. Those principles include the following:
(a) There is an onus on the applicant to demonstrate a proper basis for a stay that will be fair to all parties.
(b) There is a prima facie assumption that the judgment appealed from is correct.
(c) There is a prima facie assumption that the Court should not deprive a litigant of the benefit of a judgment in its favour.
(d) The Court has a broad discretion as to whether to grant a stay, and it is not necessary for an applicant for a stay to demonstrate special or exceptional circumstances. It is sufficient that the applicant demonstrates a reason or an appropriate case to warrant the exercise of discretion in its favour.
(e) The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case.
(f) A stay will usually be granted if there is a real risk that the applicant will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal.
(g) In the exercise of its discretion, the court will weigh considerations such as the balance of convenience and the competing rights of the parties before it.
11 The appellants emphasised paragraph (f) and submitted that in a case such as the present the Court should not consider whether there are arguable grounds of appeal. I do not accept that submission. It is, in my view, inconsistent with the scope of the discretion conferred by s 29 of the Federal Court of Australia Act and with earlier decisions of the Court, for example, Australian Competition and Consumer Commission v BMW (Australia) limited (No. 2) [2003] FCA 864 at [5] and Watts v Bendigo and Adelaide Bank Ltd [2010] FCA 1013 at [11]. In the latter case, with reference to authority, Yates J said that the Court must consider whether an arguable ground has been raised on the appeal and whether the balance of convenience favours the granting of a stay. I refer also more generally to Australian Workers' Union v Pilkington (Aust) Ltd (2001) 101 FCR 35.
12 In the present appeals the grounds are as follows, noting that in the appeals concerning continual possession of the same residential premises for a period of 20 years or more the grounds 4 and 5 are different as referable to s 94 of the Residential Tenancies Act:
1. The primary judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as involving the imposition of administrative power of a State tribunal upon a Chapter III court.
2. The primary judge erred in holding that the Respondent was empowered to make Federal Circuit Court [Commonwealth Tenancy Disputes] Instrument 2015 [Cth].
3. The primary judge erred in not holding that the Federal Court Legislation Amendment Act 2015 [Cth] is invalid as a law for the acquisition of property of the Appellant other than on just terms.
[4. The primary judge erred in holding that it was 'appropriate' to order termination of the Appellant's tenancy.]
[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 [day] 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 in 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.
13 The appellants elaborated on these grounds or perhaps added to them, by way of example, as follows:
(i) the erroneous form of Order 3 made by the primary judge;
(ii) the error both of law and on the facts made in Orders 1 and 2 in giving 7 days' notice only of termination and the same 7 days to vacate rather than giving to the Appellants the 90 days' notice of termination and to vacate provided for by the Residential Tenancies Act Part 5, especially s 94(4);
(iii) the constitutional points each of which were argued in detail by both parties, and having regard to the decision in Re Residential Tenancies Tribunal of NSW v Henderson; ex parte Defence Housing Authority [1997] HCA 36; 190 CLR 410;
(iv) the exercise of discretion under the Residential Tenancies Act in respect of each matter on the facts of the case including errors of law in reviewing the legislation;
(v) particular legal issues such as service and recusal having regard to the adverse credit findings in the case of Patrick Kenney where there was no cross examination of witnesses.
14 I accept that one or more of these grounds is or are sufficiently arguable, applying a low threshold given the prospect of prejudice to each appellant which would not be redressed by a successful appeal if a stay were not granted. Indeed the respondent did not seek to contest that one or more of the grounds was arguable if the appeals could be brought on for hearing expeditiously.
15 I then turn to the balance of convenience. There is a strong prospect of irremediable harm to each appellant in that his or her or their dwelling will be likely to be demolished if a stay is not granted. There is also prejudice to the Commonwealth, perhaps of a more general kind, if a stay is granted in terms of inconvenience, delay and additional costs.
16 I consider that the interests of the parties are best balanced by the granting of a stay but on the basis that each appeal is prosecuted by the appellant or appellants with expedition. I shall grant a stay on condition that each appellant prosecutes his or her or their appeal with expedition and complies with the Court's directions for the preparation of their appeal for hearing. I do not accept the submission on behalf of the appellants that the matter of expedition should not be dealt with in the absence of an interlocutory application by the respondent. In my opinion, in the circumstances of the present case, the expeditious preparation of the appeals is well within conditions which may be imposed under s 29 of the Federal Court of Australia Act.
17 I would grant the stay until further order so that the judge or judges conducting the case management of the appeals or hearing the appeals may lift or vary the stay in any or all of the appeals if, as matters develop, circumstances change.
18 Given that the Commonwealth is the respondent, I do not think it is necessary to make an order restraining the respondent from taking any steps to evict or otherwise disturb the occupation by each appellant of his or her land. I will, however, stay the order in each case that vacant possession of the premises be given to the Commonwealth on or before a certain date. If, contrary to my expectation, the respondent or its servants or agents seeks to obtain vacant possession, I grant each appellant liberty to apply on 48 hours' notice.
19 I grant similar liberty to apply to the respondent Commonwealth.
20 The parties should prepare the appeals for hearing in the period 13-15 April 2016.
21 It should be clear by 25 February 2016 what hearing dates have been able to be fixed and whether the Court will be constituted by one judge or by a Full Court.
22 The orders I make will be as follows, taking 13 April 2016 as a possible hearing date:
Until further order, in each appeal:
- Orders 2 and 3 of the primary judge be stayed on condition that the appellant or appellants in each matter prosecutes or prosecute his or her or their appeal with expedition and complies or comply with the directions numbered 3, 4, 6 and 8 below.
- The appeals be listed for hearing at the same time and for up to 3 days.
- Each appellant is to serve a notice under s 78B of the Judiciary Act 1903 (Cth) by 5 February 2016.
- The appellant is to file and serve his or her or their chronology of relevant events, his or her or their outline of submissions and an affidavit of service of the notice under s 78B by 16 March 2016, the outline of submissions to be no more than 20 pages as to common issues and no more than 5 pages as to issues individual to that appellant.
- The respondent is to file and serve its outline of submissions and any changes to the appellant's or appellants' chronology, marked up, by 23 March 2016, the outline of submissions to be no more than 20 pages as to common issues and no more than 5 pages as to issues individual to each appellant.
- Each appellant is to file and serve his or her or their submissions in reply by 30 March 2016, limited to 5 pages as to common issues and no more than 2 pages as to issues individual to each appellant.
- Submissions are to be easily legible using a font size of at least 12 points and one and a half line spacing throughout, including in any footnotes and annexures. Italics or underlining must be used for legislation and case citations and boldface or italics may be used for occasional emphasis.
- Each appellant is to file and serve Part C of his or her or their appeal book by 1 April 2016.
- The parties are to file and serve their lists of authorities and legislation by 8 April 2016.
- The appeals be listed for further directions at 9.30 am on 25 February 2016.
- The parties have liberty to apply on 48 hours' notice.
- If any party be in default of the directions 3-8, the non-defaulting party is to notify my associate by email with a view to relisting the matter forthwith.
- Costs reserved.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.