Australian Building and Construction Commissioner v Parker [2017] FCA 564

From the Federal Court of Australia:

INDUSTRIAL LAW – coercion – taking of action against another person – intent to coerce – need for an intent to negate choice – need for a high degree of compulsion

INDUSTRIAL LAW – intention – onus to establish affirmatively that action was not actuated by the reason alleged

INDUSTRIAL LAW – the taking of industrial action 

INDUSTRIAL LAW – breach of enterprise agreement

INDUSTRIAL LAW – accessorial liability – knowledge of essential matters which make up offence

INDUSTRIAL LAW – breach of civil penalty provisions

PRACTICE AND PROCEDURE – stay of proceeding pending resolution of criminal proceedings – stay refused – alleged contraventions “not substantially the same” 

PRACTICE AND PROCEDURE – Briginshaw standard – need to consider gravity of matters alleged 

PRACTICE AND PROCEDURE – withdrawal of an admission in defence – leave granted

Matthew White SC appeared with Michael Rennie for the Applicant.

Estate MPS, deceased [2017] NSWSC 482

From the New South Wales Supreme Court:

SUCCESSION — Family provision — Close personal relationship — Elements — Living together, domestic support and personal care — Separate residences — Nature and quality of relationship — Social intimacy
 
SUCCESSION – Family provision — Close personal relationship — Elements — Provision of domestic support and personal care — Not for fee and reward
 
SUCCESSION — Family provision — Conduct disentitling — Character and conduct of applicant — Need to examine totality of relationship
 
SUCCESSION — Family provision — Capacity of applicant to manage affairs — Form of relief — Protective orders

PROTECTIVE JURISDICTION —Family provision application – Capacity for self-management — Conduct of proceedings without tutor — Form of relief – Protective orders

Kim Morrissey appeared with Madeleine Bridgett for the Plaintiff.

Bates & Arthur and Anor [2017] FamCAFC 73 (26 April 2017)

From the Family Court of Australia:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO INTERVENE – Application in an appeal by the father seeking leave to intervene in an appeal – Where the Court is satisfied that allowing the application would not cause any injustice to the applicant – Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted – Application to intervene granted.

Dr Christopher Ward SC appeared with Madeleine Bridgett for the First Respondent.

Dattilo v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 329

From the Federal Court of Australia:

PRACTICE AND PROCEDURE – application for a stay pending application for special leave to appeal to High Court – application dismissed, with costs

David Rayment appeared for the Commonwealth.

State of New South Wales v Amacha (Preliminary) [2017] NSWSC 284

From the Supreme Court of New South Wales:

HIGH RISK SEX OFFENDER – preliminary hearing –defendant sentenced to imprisonment in relation to multiple sexual assaults on two adult women in 2007 – orders sought largely not opposed, save for curfew and wording of certain conditions

Sophie Callan appeared with Michelle Rabsch for the Plaintiff.

Trad v Harbour Radio Pty Ltd [2017] NSWCA 64

From the New South Wales Court of Appeal:

APPEAL – leave to appeal – challenge to validity of costs certificate – whether final or interlocutory order – whether order relating to costs – whether leave to appeal required under Supreme Court Act 1970 (NSW), s 101(2)(e) or (q) 
  
APPEAL – re-litigation of issue determined in previous appeal – issue not determinative of earlier appeal – whether sufficient basis for contention that earlier reasoning was erroneous
  
JUDGMENT AND ORDERS – costs certificate – costs order forming basis of assessment set aside – costs order reinstated on appeal – whether original costs certificate valid

Matthew Richardson appeared for the Respondent.

Uren v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 30

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 Instrumentcommenced 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 discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 – whereResidential 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 theConstitution – 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 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Lukic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 29

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 Instrumentcommenced 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 discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 – whereResidential 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 theConstitution – 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 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Odzic v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 28

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 theResidential 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 – whereResidential 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 theConstitution – 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 theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of 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

David Rayment appeared for the Commonwealth.

Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27

From the Federal Court of Australia

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 Instrumentcommenced 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 discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 – whereResidential 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 theConstitution – 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 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Carr v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 26

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 theResidential 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 – whereResidential 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 theConstitution – 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 theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of 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

David Rayment appeared for the Commonwealth.

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

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 theResidential 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 – whereResidential 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 theConstitution – 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 theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of 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

David Rayment appeared for the Commonwealth.

Minici v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 24

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 Instrumentcommenced 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 discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 – whereResidential 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 theConstitution – 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 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 23

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra viress 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 Instrumentcommenced 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 discretion in s 94 of theResidential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 – whereResidential 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 theConstitution – 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 20 years or more – whether predominant use of premises for the purposes of a business within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Shirvington v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 22

From the Federal Court of Australia:

ADMINISTRATIVE LAW– whether the Federal Circuit Court (Commonwealth Tenancy Disputes) Instrument 2015 (Cth) (Instrument) was ultra vires 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 theResidential 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 theResidential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of power under s 85of 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

David Rayment appeared for the Commonwealth.

Leahy v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 21

From the Federal Court of Australia:

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 Instrumentwas 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 discretion in s 94 of the Residential Tenancies Act 2010(NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 s10AA 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 20 years or more –whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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     

David Rayment appeared for the Commonwealth.

Findlay v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 20

From the Federal Court of Australia:

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 Instrumentwas 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 discretion in s 94 of the Residential Tenancies Act 2010(NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 s10AA 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 20 years or more – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – whether unresolved claim for compensation under s 187 of theResidential Tenancies Act 2010 (NSW), as the applicable law, for modifications to residence

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      

David Rayment appeared for the Commonwealth.

Tucev v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 19

From the Federal Court of Australia:

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 discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 theConstitution – 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 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.

Rigney v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 18

From the Federal Court of Australia:

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 discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement – 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 theConstitution – 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 20 years or more – whether predominant use of premises for the purposes of agriculture within s 7(h) of the Residential Tenancies Act 2010 (NSW) – whether errors in primary judge’s exercise of discretion in s 94 of the Residential Tenancies Act 2010 (NSW) that it was appropriate to make a termination order for a residential tenancy agreement

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

David Rayment appeared for the Commonwealth.