FEDERAL COURT OF AUSTRALIA

Shirvington v Commonwealth of Australia [2015] FCA 476 

Citation:	Shirvington v Commonwealth of Australia [2015] FCA 476	
		
Appeal from:	Commonwealth of Australia v Shirvington [2015] FCCA 1270	
		
Parties:	KEN SHIRVINGTON v COMMONWEALTH OF AUSTRALIA	
		
File number:	NSD 539 of 2015	
		
Judge:	PERRAM J	
		
Date of judgment:	15 May 2015	
		
Legislation:	Federal Circuit Court of Australia Act 1999 (Cth)
Residential Tenancies Act 2010 (NSW) 	
		
Date of hearing:	15 May 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	No Catchwords	
		
Number of paragraphs:	15	
		
Counsel for the Applicant:	Ms F Sinclair	
		
Solicitor for the Applicant:	VL Macri Lawyers	
		
Counsel for the Respondent:	Mr J Doyle	
		
Solicitor for the Respondent:	Australian Government Solicitor	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 539 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	KEN SHIRVINGTON
Applicant
	
AND:	COMMONWEALTH OF AUSTRALIA
Respondent

JUDGES:	PERRAM J	
DATE OF ORDER:	15 MAY 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The applications for expedition and leave to appeal, except insofar as they concern Order 3 of Judge Smith made on 1 May 2015 (‘Judge Smith’s Order 3’), be adjourned to 22 May 2015 at 10:15 am before me.
2.	The application to adjourn the applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 be dismissed.
3.	No orders as to costs in respect of the application to adjourn the applications for expedition and leave to appeal insofar as they do not concern Judge Smith’s Order 3.
4.	The applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 be dismissed.
5.	The respondent in the substantive proceeding is to pay the Commonwealth of Australia’s costs of today, insofar as the applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 are concerned.
6.	Costs are otherwise reserved.

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 539 of 2015	

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA	

BETWEEN:	KEN SHIRVINGTON
Applicant
	
AND:	COMMONWEALTH OF AUSTRALIA
Respondent

JUDGES:	PERRAM J	
DATE:	15 MAY 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
(Revised from transcript)

1		The Commonwealth is the owner of land situated at Badgerys Creek.  There is a proposal in some quarters to build a second airport for Sydney at that site.  The Commonwealth is the lessor under a number of residential leases with tenants.  Those leases are governed, in part, by the provisions of a New South Wales statute, the Residential Tenancies Act 2010 (NSW).  Although the matter is not altogether clear, there seems to be a concern amongst some of the tenants that the Commonwealth is proposing to exercise its rights as a landlord in a way which may ultimately transpire to be inconsistent with those tenants’ rights of possession.  
2		Ordinarily, disputes under the Residential Tenancies Act 2010 (NSW) are resolved by a State Tribunal, currently the NSW Civil and Administrative Tribunal.  However, recent amendments have been made to the Federal Circuit Court of Australia Act 1999 (Cth) relevantly to confer upon the Federal Circuit Court jurisdiction to deal with disputes relating to the Commonwealth as landlord (s 10AA), including pursuant to the residential leases subject to the State statute.  Pursuant to those jurisdictional arrangements, the Commonwealth has commenced a number of proceedings in the Federal Circuit Court seeking forms of relief against a number of the tenants of properties in Badgerys Creek.
3		Amongst the remedies which are sought are orders for possession.  A number of the tenants have indicated that they wish to challenge the validity of the amendments to the Federal Circuit Court of Australia Act which have conferred jurisdiction on the Federal Circuit Court to proceed in that fashion and also, as I understood the argument, to challenge the legislative instrument, signed by the Attorney-General, which had the effect of conferring the jurisdiction.  They have also sought injunctions in the Federal Circuit Court to restrain the Commonwealth from taking certain steps against them.  
4		One of those proceedings seeking to enjoin the Commonwealth is the instant case.  An application by Mr Shirvington for an injunction came before Judge Smith of the Federal Circuit Court on 1 May 2015.  In reasons which were delivered ex tempore, his Honour dismissed the proceeding upon the basis, as I read it, that since the Commonwealth was seeking orders from the court, it was unlikely that it was seeking to take steps outside those proceedings to interfere with the possession of the tenants.  He dismissed the application for an injunction.  Ventilated in a fashion before his Honour at the same time was the issue of the constitutional validity of the amended provisions of the Federal Circuit Court of Australia Act and the legislative instrument.  
5		Over objection, his Honour fixed for hearing on 18 and 19 May 2015 the determination of those constitutional questions.  That debate is to take place in advance of an actual hearing of the Commonwealth’s substantive application which, as I understood it, is to take place some time in July.  The Commonwealth had sought that that application be itself expedited, but it was unsuccessful in that regard.  Judge Smith’s orders were made on 1 May, and they were as follows:
‘1.	The application for an interim injunction filed by the respondent on 27 April 2015 be dismissed.
2.	There be no order as to costs in relation to order 1.
3.	The matter be listed for any argument raising the question of jurisdiction of this Court for hearing on 18 and 19 May 2015 at 10.15am.
4.	Should the respondent wish to raise further constitutional issues, notices under s.78B of the Judiciary Act 1903 (Cth) be served by 5 May 2015.
5.	The respondent file and serve any written submissions on the question of jurisdiction by 7 May 2015.
6.	The applicant file and serve any written submissions in response on the question of jurisdiction by 13 May 2015.
7.	The respondent file and serve any written submissions in reply on the question of jurisdiction by 15 May 2015.
8.	The parties send by email, to my associate, electronic copies of all authorities and legislation to be relied upon by 14 May 2015.
9.	The substantive proceeding be listed for hearing on 20 July 2015 at 10.15am for five days, noting the possibility that the hearing might extend into the following week.
10.	The respondent file and serve an amended response, listing an address for service, within 14 days.
11.	The applicant file and serve any further evidence upon which it intends to rely in relation to the substantive proceeding by 21 May 2015.
12.	The respondent file and serve any evidence upon which he intends to rely in relation to the substantive proceeding by 26 June 2015.
13.	The applicant file and serve any evidence in reply to the respondent’s evidence in relation to the substantive proceeding by 10 July 2015.
14.	The matter be listed for a pre-trial directions hearing on 3 July 2015 at 9.30am.
15.	The parties have liberty to apply on 3 days’ notice.’

6		As will be seen, there are a range of orders here ranging from straightforward timetabling orders to orders fixing the matter for hearing and also an order refusing an interlocutory injunction.  
7		Urgent proceedings were commenced in this Court on 13 May 2015 seeking expedition of an application for leave to appeal and leave to appeal itself.  Leave is necessary because, unquestionably, the decision of the Federal Circuit Court was interlocutory in nature.  The leave application came before the Court for the first time today, which is 15 May, that is to say, two days after it was filed.  When the matter was called before the Court, Ms Sinclair appeared on behalf of Mr Shirvington and applied for an adjournment of seven days.  This was sought because Mr King of counsel, who ordinarily appears for Mr Shirvington, is detained in proceedings in Victoria.  
8		The Commonwealth, in principle, did not oppose the adjournment of the period sought, that is, seven days, but it did object to one aspect of the matter.  That aspect is that one of the orders set out above, made by Judge Smith, was that the matter be listed for argument on the question of jurisdiction on 18 and 19 May.  18 and 19 May are Monday and Tuesday next week, and today is Friday.  From the form of application for leave to appeal which has been filed, it is unclear which of the 15 orders made by Judge Smith on 1 May the applicant is, in fact, seeking leave to appeal from.  
9		If what is sought to be the subject of the leave application is the refusal of Judge Smith to grant the interim injunction, then there are no particular difficulties with the matter being adjourned for a short period of seven days.  If, on the other hand, the appeal relates to Judge Smith’s decision, over objection, to fix for hearing on 18 and 19 May, next Monday and Tuesday, the determination of the separate question of the constitutional validity of the relevant provisions and the legislative instrument then it is a very different picture.  It is a very different picture because it may be that if the leave application includes any dispute about whether 18 and 19 May are appropriate hearing dates that this itself will form the basis for a further adjournment application to be made before the Federal Circuit Court on 18 and 19 May.  
10		I do not think that the Federal Circuit Court should be put in the position of being told that an application for leave to appeal from its decision to fix the matter for hearing is still pending.  For that reason, I raised with Ms Sinclair whether she could confirm that the application for leave to appeal which the applicant wished to have stood over for seven days did not include any application for leave to appeal from the decision to fix the separate question for hearing.  She was unable, due to an absence of instructions, to assist me in that regard.  
11		What I propose to do, in those circumstances, is to adjourn so much of the application for leave to appeal and application for expedition which do not concern an appeal relating to order 3 made by Judge Smith on 1 May for a period of seven days to Friday, 22 May.  In relation to so much of the application for leave to appeal and expedition application as concerns order 3 made by Judge Smith, I decline to adjourn that, and I will deal with it this morning.
12		Therefore what remains before me is an application for leave to appeal in relation to order 3 made by Judge Smith on 1 May 2015.  That order is as follows:
‘The matter be listed for any argument raising the question of jurisdiction of this Court for hearing on 18 and 19 May 2015 at 10.15 am.’

13		No reason has been advanced to me why I should grant leave to appeal in respect of that matter when the matter was called on this morning.  As I understand it from discussions which took place at the bar table, the fixing of those dates was a disputed matter before the Federal Circuit Court.  However, I know nothing of what that dispute was, nothing of the circumstances which led to the making of the order and I am not able to form a view as to the correctness or incorrectness of that decision. 
14		Since the applicant for leave to appeal bears the onus of demonstrating some ground for granting leave, it follows that no basis has been established for the grant of leave by me in respect of that matter.  It follows that I should dismiss the application for leave to appeal insofar as it relates to the order made by Judge Smith on 1 May 2015 fixing the matter for hearing on 18 and 19 May 2015.
15		I make the following orders:
1.	The applications for expedition and leave to appeal, except insofar as they concern Order 3 of Judge Smith made on 1 May 2015 (‘Judge Smith’s Order 3’), be adjourned to 22 May 2015 at 10:15 am before me.
2.	The application to adjourn the applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 be dismissed.
3.	No orders as to costs in respect of the application to adjourn the applications for expedition and leave to appeal insofar as they do not concern Judge Smith’s Order 3.
4.	The applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 be dismissed.
5.	The respondent in the substantive proceeding is to pay the Commonwealth of Australia’s costs of today, insofar as the applications for expedition and leave to appeal in respect of Judge Smith’s Order 3 are concerned.
6.	Costs are otherwise reserved.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.	

Associate:

Dated:	20 May 2015