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Commonwealth of Australia (as Represented by the Department of Infrastructure & Regional Development) v Jelfs & Anor (No.3) [2017] FCCA 1321 (23 June 2017)

Last Updated: 27 June 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) v JELFS & ANOR (No.3)


Catchwords:
ADMINISTRATIVE LAW – Commonwealth tenancy dispute – termination of long term tenancy agreement – application for extension of time within which to apply for a warrant of possession – extension necessitated by the first respondent’s appeal and stay of orders previously made – discretion under s.121 of the Residential Tenancies Act 2010 (NSW) – application for extension of time granted.


Legislation:
Residential Tenancies Act 2010 (NSW), ss.80, 94, 121, Pt.5, Pt.6

Cases cited:
Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No.2) [2017] FCCA 1014
Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27
King v New South Wales Land & Housing Corporation (1992) 26 ALD 684


Applicant:
COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

First Respondent:
KIM JELFS

Second Respondent:
CASEY-DEAN JELFS

File Number:
SYG 1052 of 2015

Judgment of:
Judge Smith

Hearing date:
18 May 2017

Date of Last Submission:
18 May 2017

Date of Orders Made:
18 May 2017

Delivered at:
Sydney

Delivered on:
23 June 2017





REPRESENTATION

Counsel for the Applicant:
Mr J. Doyle and Mr D.W. Rayment

Solicitors for the Applicant:
Australian Government Solicitor

Counsel for the First Respondent:
Mr P. King

Solicitors for the First Respondent:
The People's Solicitor Pty Ltd


ORDERS (AS MADE ON 18 MAY 2017)

(1) The time within which the applicant may apply for a warrant for possession is extended to 30 days from the date of this order.
(2) The respondents are to pay the applicant’s costs in the application in a case.
(3) The applicant’s costs referred to in order 2 are fixed in the amount of $2,900.
(4) Order 1 above be stayed for a period of 7 days from the date of this order.





FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1052 of 2015

COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT)

Applicant

And

KIM JELFS

First Respondent

CASEY DEAN JELFS

Second Respondent


REASONS FOR JUDGMENT

  1. The Commonwealth is the registered proprietor of the land situated at 677 Badgerys Creek Road, Badgerys Creek NSW 2555, comprising part of Lot 1 DP 838361 (Premises). The first respondent lived on the Premises for over 20 years as a tenant.
  2. In April 2015, the Commonwealth commenced proceedings seeking orders terminating the residential tenancy agreement between it and the respondents in respect of the Premises and for possession of the Premises.
  3. Those proceedings were contested and after a number of hearings, I made the following orders on 11 December 2015:
...
  1. The first respondent appealed from that judgment. Although leave was granted for an application to be made to join the second respondent as an appellant, no such application was made. On 22 January 2016 Robertson J stayed Orders 2 and 3.
  2. On 2 March 2017, the Full Court of the Federal Court (Kenny, Robertson and Griffiths JJ) dismissed the appeal: Jelfs v Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCAFC 27.
  3. On the same day, Griffiths J ordered that Orders 2 and 3 made by me and the Orders of the Full Court of the Federal Court be stayed for a period of 28 days to enable the respondents to decide whether or not to apply for special leave to appeal to the High Court of Australia.
  4. On 30 March 2017 the first respondent applied for special leave to appeal to the High Court and, on the same day, the stay ordered by Griffiths J on 2 March 2017 lapsed.
  5. There has been no further stay of Orders 2 and 3 made by me on 11 December 2015.
  6. The Commonwealth now seeks an extension of time within which to apply for a warrant for possession.
  7. This application was heard with a number of similar matters on 18 May 2017 and I made orders on that day. These are my reasons for those orders.
  8. These reasons are similar to the reasons I gave in the matter of Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No.2) [2017] FCCA 1014 (Uren) which dealt with the same issues and arguments by the parties in this application. Although the second respondent played no part in the substantive proceedings before me, or in the appeal, written submissions filed by counsel for the respondents in all of these matters suggested that they were made on behalf of both the respondents in these proceedings. For that reason, I will treat those submissions as having been made on behalf of both respondents.
  9. For the reasons explained by the Full Court of the Federal Court, the law to be applied to the dispute between the parties was the Residential Tenancies Act 2010 (NSW) (Act).
  10. Section 121 of the Act relevantly provides:
  11. The reference to “Tribunal” is taken to be a reference to the Court.
  12. The “date by which vacant possession was required” referred to in s.121(2) was originally 9 February 2016; however, that changed because of orders staying the orders made on 11 December 2015. In effect, Order 3 made on that day has been overcome by the stay ordered by Robertson J on 22 January 2016. The consequence is that the order for immediate possession took effect only on 30 March 2017.
  13. The Commonwealth argues that the Court ought to allow a further period under s.121(3) for the following reasons:
(i) Order 1 made on 11 December 2015 operated to immediately terminate the residential tenancy. The order has never been stayed and so the respondents have had no legal right to possession since 11 December 2015;
(ii) the respondents are in breach of Order 2 requiring them to give vacant possession to the Commonwealth;
(iii) the only reason why the Commonwealth has not moved more quickly to apply for a warrant is that the relevant orders were stayed until very recently; and
(iv) to refuse the grant of an additional period within which a warrant may be applied for by the Commonwealth would defeat the purposes for which the orders were made.
  1. The respondents resisted the application on a number of bases.
  2. Amongst those was the argument that the conferral on the Court of powers under the Act was unconstitutional. I note that, in support of an application for a stay of the order granting an extension of time within which to apply for a warrant in the matter of Uren, counsel for the respondents argued that I had not dealt with that argument in my judgment. That contention was correct only in that I did not deal with the argument expressly. However, I observed in Uren, as I have observed at [12] above, that the law to be applied in these proceedings was the Act. That implicitly dealt with the argument and nothing further needs to be said about it. Indeed, as I noted in response to the argument in the application for a stay in Uren, nothing of any substance was said about it in the respondents’ oral submissions. The point was, and remains, unarguable in light of the decision of the Full Court.
  3. Turning to the more substantial arguments, the respondents first argued that, in light of s.121(3), the fact that the Commonwealth has given no assistance to them to move, weighs against any extension of time. The argument is based on the purpose of s.121(3) which is to encourage genuine attempts to resolve difficulties between the parties. The difficulty with this submission is that it ignores the opening words of s.121(3) “without limiting subsection (2)”. While it may be accepted that s.121(3) encourages negotiation between the parties, it does nothing to limit the power of the Court to extend time under s.121(2), even if such attempts to reach agreement do not take place. Certainly, it does not, in my view, make the existence of negotiations a prerequisite, or even necessarily relevant to the exercise of the power in s.121(2).
  4. The respondents then argued that there was no evidence that the Commonwealth had approached the Registrar of the Court for the issue of a warrant, or that the orders made on 11 December 2015 had been served on the respondents. I do not accept that either of those matters makes any difference.
  5. First, there is no express or implicit limitation on the power to extend the time within which to apply for a warrant connected with an application to the Registrar or the service of the relevant orders. Counsel for the respondents referred to a decision of the New South Wales Residential Tenancies Tribunal[1] (RTT) in which, he said, the Tribunal held that there was no power in the Registrar to make an order for the issue of a warrant in the absence of proof of service of the orders. That however, addressed a different question to the one I am asked to consider. I am not determining whether to issue a warrant, but only to extend the time within which the Commonwealth might ask for a warrant to be issued. In any event, although the Registrar may properly refuse to exercise the power to issue a warrant for possession in the absence of satisfaction that a former tenant is on notice of the order for possession, I do not accept that he or she has no power to issue a warrant in those circumstances.
  6. Secondly, and in any event, the respondents were clearly aware of the orders made on 11 December 2015: the first respondent both appealed from them and sought a stay of them.
  7. The respondents next argued that any extension of time ought to be subject to conditions, namely, that the warrant not be applied for within 90 days. In support of this, the respondents relied on the broad protective provisions in Pt.5 of the Act commencing with s.80 and, in particular, s.94. They also relied on the decision of the New South Wales Court of Appeal in King v New South Wales Land & Housing Corporation (1992) 26 ALD 684 (King).
  8. Part 5 of the Act deals with the termination of residential tenancy agreements. The residential tenancy agreement between the respondents and the Commonwealth was terminated in accordance with those provisions by Order 1 made on 11 December 2015. I do not accept that those provisions have any impact once an order for possession has been made and, as in this case, not complied with. It may be that those provisions were intended to address the imbalance of power between landlords and tenants, but that does not appear to be the purpose of the provisions in Pt.6 of the Act, such as s.121, which concern the recovery of possession of residential premises.
  9. The decision in King does not assist the respondents. That case was an appeal by leave from the refusal by a judge of the Supreme Court of New South Wales to grant interlocutory relief pending the determination of a summons seeking judicial review of the decision of the RTT. The RTT had made an order for possession in respect of premises occupied by Mr King but had suspended that order subject to a number of conditions. It also ordered that, if Mr King did not comply with those conditions, the respondent could apply for the issue of a warrant of possession without further notice to Mr King. The case did not involve an extension of time under s.121(2), and gives no support to the proposition that such an extension can be made subject to conditions.
  10. Even if I did have the power to impose conditions on the extension of time under s.121(2), I would not impose any condition on that extension.
  11. First, the delay has not been caused by the Commonwealth. Rather, the extension of time has been necessitated by the first respondent’s appeal and the orders staying the orders of 11 December 2015 for possession. Although the first respondent seems to have pursued her appeal with all due expedition, the appeal was ultimately unsuccessful.
  12. Secondly, the respondents have no right to remain on the Premises and have known for many months of the possibility that they would have to leave with little or no notice.
  13. Thirdly, the respondents have known since 30 March 2017 that the Commonwealth has had the right to immediate possession. Any delay in taking all necessary steps to vacate the Premises falls on them as does any difficulty created by their failure to do so.
  14. The first respondent gave evidence in an affidavit affirmed on 3 May 2017 to the following effect:
    1. she needed time to find suitable alternative accommodation in a location and price range that meets her requirements;
    2. she asked an agent for the Commonwealth for assistance in 2014-2015 but received none;
    1. although she requested a rental ledger from the property manager in March 2017, she only received records in relation to her worst records of nine months of tenancy and was concerned about what would happen if a prospective landlord called for a verbal reference;
    1. another hurdle in obtaining another home is that she has pets which are almost never permitted and she has enquired about dozens of properties;
    2. she has to fit in looking for accommodation around her work commitments;
    3. she cannot work fulltime because of health issues from previous surgery, has problems with her back and Sjogrens Disease;
    4. she has been attending doctors at Liverpool Hospital since her surgery in 2008 and has all her medical records there;
    5. moving to another area would be difficult because her job is local, Centrelink can suspend payments, and her daughter, son-in-law and grandchildren live locally;
    6. her current rent is $190 per week;
    7. there are many privately owned properties on her road;
    8. her financial resources are very limited; and
    1. she is time poor, has specific needs and now has a poor rental history because of her involvement in these court proceedings.
  15. None of these matters, either together or individually, warrants the imposition of any condition on the extension of time for applying for a warrant. None of them has arisen since the respondents’ tenancy agreement was terminated in 2015. The evidence concerning the first respondent’s efforts to find alternative accommodation is also extremely vague and does not satisfy me that she has made any real effort at any time to find another place to live. I accept that the first respondent’s health issues might cause her difficulties, but there is nothing to show that they prevent her from finding another home or from moving to live elsewhere.
  16. The delay in seeking the issue of a warrant has not been caused by anything other than the appeals brought by the respondents. The Commonwealth expeditiously applied for an order extending the time for applying for a warrant. It is entitled to immediate possession and the respondents are not acting in accordance with the orders of this Court.
  17. In those circumstances the only reasonable decision is to extend the time to apply for a warrant. An extension of 30 days reflects the original limit in s.121 of the Act and provides for a sufficient opportunity to enforce the judgment obtained on 11 December 2015.
  18. The respondents should pay the costs of the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date: 23 June 2017

[1] As it was then known. On 1 January 2014, it became the NSW Civil and Administrative Tribunal, also known as “NCAT”.

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