Consideration
29 For the following reasons, I am not satisfied that the occupants have established a sufficiently strong prima facie case that there is any probability that at a final hearing the occupants would obtain relief so as to support the grant of an injunction to preclude the imminent execution of the warrants for possession: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-84 [65]-[72], esp at 81-82 [65], per Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed on the principles at 68 [19]; Bienstein 195 ALR at 231 [29].
30 The occupants made a decision not to file or serve a notice under s 78B of the Judiciary Act 1903 (Cth) despite their obligation to do so under rr 8.11 and 8.12 of the Federal Court Rules. Ordinarily, that would entail that I would be obliged to not hear their applications for an injunction unless I were satisfied that it was necessary in the interests of justice to do so under s 78B(5). In my opinion, the deliberate default of the occupants tells very much against them in that regard. The importance of s 78B is that the Attorneys-General of the Commonwealth and each of the States and Territories have the opportunity to consider any constitutional point that arises in proceedings so as to be able to decide whether to exercise their rights to intervene or remove the matter into the High Court. Of course, in the proceedings for a stay before him, Nettle J said:
needless to say, it has not been contended that it is beyond the legislative competence of the Commonwealth Parliament to enact that a Minister of the Commonwealth may provide by legislative instrument for the specific powers of a federal court within the ambit of any federal jurisdiction validly conferred on that court.
31 It now appears that the occupants will seek to raise an argument to the contrary of what Nettle J said had not been in issue earlier, under the guise of a constitutional matter. In my opinion, the mooted new constitutional matter is so flimsy and unlikely to be found to have any substance that I need not grant a stay. Both Robertson and Burley JJ also did not regard the point as sufficiently worthy of either granting a stay under s 78B of the Judiciary Act or of interfering with the operation of the order that the Commonwealth could apply for the warrants or enforce any warrant after its issue.
32 In my opinion, there is no sufficient likelihood of success for the occupants' arguments that Judge Smith erred in the exercise of his discretion. It is likely that a Court would find that the circumstance that the Commonwealth was not proceeding with a particular contractor to construct the proposed infrastructure at Badgerys Creek was of no relevance to its right to enforce immediately the order giving effect to its right to vacant possession. Nor, in my opinion, is there any substance, sufficiently likely to attract success on an appeal, in the argument that the occupants suffered any harm prior to the termination of their tenancies when Judge Smith made the order for vacant possession on 11 December 2015 that could possibly bear on whether that order should be enforced. Any harm can, and would be, harm suffered as a pre-existing breach of a landlord's obligation that could be compensated, if proved, by an order for damages.
33 For those reasons, there is not a sufficiently arguable prospect of success on the argument that his Honour erred in the exercise of his discretion.
34 In my opinion, the occupants' contention that the Commonwealth had somehow waived its right to enforce the order for vacant possession because it had created a new tenancy by accepting "rent" is in the teeth of the express provisions of s 123 of the Residential Tenancies Act and is unlikely to provide any foundation for such a contention, were any final hearing of the proposed appeals to occur.
35 The characterisation of the relationship between landlord and tenant or licensee and licensor is a question of law as to the substance of the relationship and is not determined by the form or way in which the parties necessarily act or describe themselves or their dealings: Radaich v Smith (1959) 101 CLR 209 at 214 per McTiernan J, at 220 per Taylor J, at 220 per Menzies J, at 224 per Windeyer J, Dixon CJ agreeing with all of the other Justices at 213; Street v Mountford [1985] AC 809.
36 Here, the Commonwealth had obtained an order for vacant possession of the real properties that the occupants had held previously as its tenants and on which they still remained. In that situation, s 123 of the Residential Tenancies Act imposed a liability on the occupants to pay an occupation fee in the same sum as the immediately preceding rent. In this context, I do not consider that there is a sufficiently strong argument that the Commonwealth acted in a way that would be likely to be found, at a final hearing, to have created a new relationship of landlord and tenant in circumstances where it has been actively trying to evict the occupants from the properties on which they still reside.
37 In addition, as I have noted at [18] above, the character of the jurisdiction that the Court is exercising in the proceedings in which the relief is sought is a relevant consideration. Here, the occupants seek the exercise of the Court's power to stay, or to grant an interlocutory injunction to prevent, enforcement of a final order, being the order for vacant possession. In that regard I note that every application for a stay or the grant of other interlocutory relief that any of the occupants has made, since the Full Court decided that the appeals against the orders for vacant possession should be dismissed, has resulted in a refusal to grant those occupants any interlocutory relief on the various grounds on which they applied.
38 The challenged exercise of the Registrar's power to issue the warrants must be considered in light of the applications to Judge Smith, his Honour's reasons and orders made on 18 May 2017. His Honour noted that the occupants had argued that any extension of time ought to be subject to conditions, including one that the warrants not be applied for within 90 days. He considered the evidence put before him of the individual difficulties of Ms Uren in removing her livestock and possessions from her premises. But his Honour also made orders on 18 May 2017 against the other occupants on the basis of the concession that I have noted at [6] above. As Mr King argued, Mr and Mrs Shirvington also had put evidence before Judge Smith and me about difficulties that they alleged affected their entry to some land that they had earlier occupied. Those matters were before his Honour.
39 In light of Mr King's concession to Judge Smith on 18 May 2017, I can see no sufficiently arguable error in the cases of Mr and Mrs Shirvington to distinguish, from the cases of the other occupants, their present application, or its lack of sufficient prospects of raising a successful ground of appeal.
40 In Stead 161 CLR at 147, Mason, Wilson, Brennan, Deane and Dawson JJ said:
All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result. (emphasis added)
41 In this case, the question whether Judge Smith and the Full Court erred in relation to upholding the Commonwealth's right to orders for vacant possession is the subject of the application for special leave to appeal to the High Court, in respect of which Nettle J and judges of this Court have refused to grant any stay. The warrants enforcing that order are the subject matter of the application now before me. Judge Smith exercised his discretion to allow the Commonwealth to apply for the issue of those warrants and granted a seven day stay before it could do so. His Honour acted on the basis of the arguments, and submissions to like effect, which the occupants now say that they also should have had a further opportunity to put yet again to the Registrar in the hope of achieving a different outcome.
42 I reject that argument. Relevantly, the Registrar's power under s 121(1) was enlivened if the Registrar was satisfied that the order for vacant possession (or a condition of suspension of that order) had not been complied with. There was no suggestion that the orders for vacant possession had been complied with, and there were no conditions applying to those orders despite the attempt by the occupants to obtain such conditions.
43 As I have noted, in this case, the present applications are not appeals instituted in the Court. Rather, they are applications for an extension of time in which the occupants other than Ms Uren can seek leave to appeal, and, in her case, an application for leave to appeal, against the Registrar's decision to issue, without conditions, warrants for possession. The occupants had a full opportunity of litigating, before Judge Smith, their arguments for the imposition of the very conditions that they say the Registrar was then required to consider again, notwithstanding that his Honour granted each of the occupants only a seven day stay before the Commonwealth could apply for immediately enforceable warrants to issue.
44 His Honour granted that stay in respect of each of the occupants' arguments before him after delivering his reasons in Ms Uren's case. As I have noted, his Honour had not delivered (and will tomorrow deliver) reasons for his identical orders in respect of each of the other occupants that he made based on Mr King's concession that I have recorded at [6] above.
45 In any event, each of the occupants was aware that, first, the Commonwealth would wish to enforce its orders for vacant possession once that seven day stay had expired and, secondly, each could have made, but did not make, an application in advance to the Registrar for the imposition of any conditions or delays in the issue of any warrants.
46 I am not satisfied that, in the circumstances, the occupants were denied an opportunity to be heard before the Registrar made his decisions to issue the warrants. At the time of the Registrar's decisions to issue the warrants on 26 May 2017, there is no doubt that, first, the orders for vacant possession had not been obeyed and, secondly, the occupants would not comply with them unless the warrants were issued and enforced.
47 I am of opinion that the occupants had put already their cases for conditions and stays on the issue and immediate enforceability of the warrants to Judge Smith before he made his orders on 18 May 2017. His Honour had dealt with the cases as put, including in light of the concession that I have noted at [6] above, fairly and appropriately. Ms Uren advanced a similar range of arguments to Burley J and Mr and Mrs Odzic made similar arguments to Robertson J as are now sought to be made to me.
48 The occupants have known for a long time that there is an enforceable, final order that each of them give vacant possession of their properties. I am not satisfied that any of the arguments which they say they wished to put before the Registrar would have made a difference to his decision to issue warrants immediately in their current form without additional conditions: Stead 161 CLR at 147. This is particularly so in light of the fact that the occupants put those very arguments to Judge Smith, or relied on the discretionary considerations that Ms Uren had raised before his Honour, which formed the basis on which his Honour made his orders on 18 May 2017. Therefore, his Honour's orders and the conceded common matters that he had already taken into account in Ms Uren's case, conditioned the ambit of what the Registrar could do when the Registrar came to consider whether the only precondition for the grant of a warrant in s 121(1) was satisfied, namely that each of the occupants had not complied with the immediately enforceable orders for vacant possession.
49 I am not persuaded that any of the occupants has established a sufficiently arguable prima facie case to support the grant of interlocutory injunctions in accordance with the principles identified in O'Neill 227 CLR 57; see too, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at 260-261 [66]-[67] per Dowsett, Foster and Yates JJ. Nor am I persuaded that the balance of convenience would justify the grant of any such injunction in the nature of a stay.
50 The balance of convenience, in relation to the enforcement of the orders for vacant possession made on 11 December 2015, has been considered by every Court to which any of the occupants has applied since the Full Court determined the occupants' appeals adversely to them on 2 March 2017. There are no relevantly different considerations that would affect my assessment that the balance of convenience weighs heavily against the occupants. In effect, they are seeking to delay giving effect to the final orders of Judge Smith made on 11 December 2015 that the Full Court affirmed when it dismissed their appeals on 2 March 2017. Nettle J refused to grant a further stay to two of the occupants, Mr and Mrs Dattilo, in aid of their application for special leave to appeal.
51 If the applications for special leave to appeal are refused, that will be the end of the occupants' ability to challenge the orders for vacant possession. If special leave is granted, that may change the forensic landscape, but at the moment, I am dealing with the position as it is, in which a Justice of the High Court, as well as other judges of this Court, has refused to grant a stay or interlocutory injunction preventing enforcement of the orders for vacant possession.
52 In all of the circumstances, I am not satisfied that any of the occupants is entitled to an interlocutory injunction to restrain the enforcement of the warrants.