FEDERAL COURT OF AUSTRALIA Shirvington v Commonwealth of Australia (No 2) [2015] FCA 522 Citation: Shirvington v Commonwealth of Australia (No 2) [2015] FCA 522 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: 28 May 2015 Catchwords: LANDLORD AND TENANT – whether conduct of landlord sufficient foundation for claim for injunction PRACTICE AND PROCEDURE – whether leave to appeal should be granted Legislation: Federal Circuit Court of Australia Act 1999 (Cth) Federal Court of Australia Act 1976 (Cth) s 24(1A) Residential Tenancies Act 2010 (NSW) ss 50, 52, 94 Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Jones v Dunkel (1959) 101 CLR 298 Date of hearing: 22 May 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr P King Solicitor for the Applicant: VL Macri Lawyers Counsel for the Respondent: Mr DW Rayment and 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 JUDGE: PERRAM J DATE OF ORDER: 28 MAY 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applications for the injunction, leave to appeal and expedition be dismissed with costs. 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 JUDGE: PERRAM J DATE: 28 MAY 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This case relates to a proposed second airport for Sydney at Badgerys Creek at the edge of the Sydney metropolitan area. The applicant, Mr Shirvington, has for more than 20 years leased his home there. That home is built on land which, should the airport proceed, is likely to form part of the airport. For many years the Commonwealth has been acquiring land at Badgerys Creek in case a decision was ever made to proceed with the airport. As a consequence, the Commonwealth is presently Mr Shirvington's landlord. 2 On 15 April 2014 the Commonwealth announced that land owned by it at Badgerys Creek would be the site for a new airport. On 29 October 2014 a firm of real estate agents, Preston Rowe Paterson NSW Pty Limited, wrote to Mr Shirvington indicating that the Commonwealth intended to determine his lease and to obtain vacant possession. It foreshadowed the issuing of more formal correspondence relating to the termination. The letter also indicated two further matters of note: (a) the likely date on which vacant possession would be needed was sometime in June 2015; and (b) there were special rules in place governing the position of tenants who had occupied their homes for more than 20 years. 3 Insofar as (b) is concerned, the letter asked such tenants to identify themselves to the agents. 4 The more formal correspondence foreshadowed in the letter of 29 October 2014 came by way of a letter dated 24 November 2014. This letter informed Mr Shirvington that the Commonwealth required vacant possession of his home by 15 June 2015. At the same time, however, it informed Mr Shirvington that the position of tenants of more than 20 years standing was governed by special provisions and that Mr Shirvington might be one such person. It referred him to an attachment which accompanied the letter. 5 The effect of the letter and the attachment was to convey to Mr Shirvington that: (a) the Commonwealth wanted possession by 15 June 2015; and (b) if Mr Shirvington had been in occupancy for more than 20 years then the Commonwealth would apply for an order terminating his lease with effect from 15 June 2015. 6 The letter strongly suggested that the premises should be vacated by 15 June 2015. 7 It seems Mr Shirvington ignored, or at any rate, was unmoved by these overtures. On 27 February 2015 the agents, Preston Rowe Paterson NSW Pty Limited, again wrote to him indicating that if they did not hear from him then the Commonwealth would apply to the Federal Circuit Court for orders terminating his lease with effect from 15 June 2015. The terms of this letter are important and I will set out the relevant portions: 'The Government intends in the coming weeks to apply to the FCC for an order terminating your tenancy on 15 June 2015. A copy of the Government's application will be served on you after it has been filed with the FCC. The application will contain details of the orders applied for by the Government (namely an order terminating your tenancy on 15 June 2015 and an order for possession) and the place and date of the hearing of the Government's application.' 8 Section 94 of the Residential Tenancies Act 2010 (NSW) provides: '94 Termination of long term tenancies (1) The Tribunal may, on application by a landlord, make a termination order for a residential tenancy agreement: (a) if the tenant has been in continual possession of the same residential premises for a period of 20 years or more, and (b) if the tenant occupied the premises under a fixed term agreement, the fixed term of the original agreement has expired, and (c) if the Tribunal is satisfied that it is appropriate to do so in the circumstances of the case. (2) A landlord may make an application under this section without giving the tenant a termination notice. (3) The Tribunal must not make a termination order under this section that specifies a termination date that is before the end of the fixed term if the residential tenancy agreement is a fixed term agreement. (4) The Tribunal, in determining the day on which vacant possession of the residential premises is to be given to the landlord, must no order that vacant possession be given earlier than 90 days after the order is made.' 9 In relation to land owned by the Commonwealth, the role of the Tribunal is supplanted under the terms of the Federal Circuit Court of Australia Act 1999 (Cth) by the Federal Circuit Court. The 90 day limit in subs (4) raises its own issues, including its interaction with Federal law, but none of these is presently relevant. 10 On 12 March 2015, the Commonwealth commenced proceedings in the Federal Circuit Court seeking orders terminating Mr Shirvington's lease and for vacant possession on or before 15 June 2015. Those proceedings are set down for trial in July 2015 in the Federal Circuit Court. It will be apparent that, for practical reasons, the Commonwealth is not going to get such an order by 15 June 2015. 11 The first part of Mr Shirvington's case concerns his contention that the Commonwealth is attempting to drive him out of his premises by 15 June 2015 and that this is unlawful. The Commonwealth says that it is not doing anything beyond pursuing its proceedings in the Federal Circuit Court and that such litigious conduct is not unlawful. Mr Shirvington says that the letter of 24 November 2014 shows that the Commonwealth is seeking to evict him by 15 June 2015. Whilst I would accept that that letter exhibits an enthusiasm to obtain vacant possession by 15 June 2015, I do not think that, fairly read, the three letters of 29 October 2014, 24 November 2014 and 27 February 2015 do any more than say that the Commonwealth will take the lawful step of suing Mr Shirvington in the Federal Circuit Court to get orders for possession. This is not a threat to oust him from his home unlawfully. 12 The second part of Mr Shirvington's case involves quite different considerations. Mr Shirvington says that since the announcement in April 2014, the Commonwealth has become a delinquent landlord. It has failed to carry out basic repairs that are its responsibility under Mr Shirvington's lease such as, for example, repairing his broken dishwasher. Mr Shirvington swore in an affidavit dated 29 April 2015 that he had spoken to the agent about these matters but that nothing had been done and, further, that he had not heard from the agent for six weeks. 13 Mr Shirvington is also acquainted with a number of people in his area who have received similar correspondence from the Commonwealth in relation to vacant possession. A number of these people have informed Mr Shirvington that they have been told by the agents that if they do not vacate by 15 June 2015 the Commonwealth will cut off their power, turn off their water and stop garbage collection services. Pointedly, Mr Shirvington does not say, however, that he has been told these things himself. 14 I raised with counsel for Mr Shirvington whether this did not present something of a difficulty for his case that there was a risk of unlawful interference with Mr Shirvington's rights warranting this Court's intervention. Counsel's response was twofold: (a) the nature of the threats made to the other tenants was such that they would be understood by Mr Shirvington as being applicable to him; and (b) when combined with the failure of the Commonwealth to carry out proper repairs under the lease, these alleged threats led to an inference that the Commonwealth was likely to cut off Mr Shirvington's utilities. 15 Counsel also sought to buttress this argument by noting that the Commonwealth did not lead any evidence, as easily it could have, to show that it was not going to take the alleged steps. 16 The relevant legal rules are contained in ss 50 and 52 of the Residential Tenancies Act 2010 (NSW) which are as follows: '50 Tenant's right to quiet enjoyment (1) A tenant is entitled to quiet enjoyment of the residential premises without interruption by the landlord or any person claiming by, through or under the landlord or having superior title (such as a head landlord) to that of the landlord. (2) A landlord or landlord's agent must not interfere with, or cause or permit any interference with, the reasonable peace, comfort or privacy of the tenant in using the residential premises. Maximum penalty: 10 penalty units. (3) A landlord or landlord's agent must take all reasonable steps to ensure that the landlord's other neighbouring tenants do not interfere with the reasonable peace, comfort or privacy of the tenant in using the residential premises. (4) This section is a term of every residential tenancy agreement. 52 Landlord's general obligations for residential premises (1) A landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. (2) A landlord must not interfere with the supply of gas, electricity, water, telecommunications services or other services to the residential premises unless the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. (3) A landlord must comply with the landlord's statutory obligations relating to the health or safety of the residential premises. Note. Such obligations include obligations relating to swimming pools under the Swimming Pools Act 1992. (4) This section is a term of every residential tenancy agreement.' 17 I do not think that there is any evidence of a threatened breach of s 50. The best that might possibly be said is that the three letters which were sent amounted to such a breach. However, I do not think that a written threat to commence proceedings which are designed to obtain possession can amount to an interference with the current possessor's right to quiet enjoyment. 18 Insofar as the threats to disconnect utilities after 15 June 2015 to the other persons known to Mr Shirvington are concerned, I do not think these assist Mr Shirvington. This is because I do not accept, contrary to counsel's argument above, that any threat exists to Mr Shirvington himself. The position of the other tenants would be useful to his case only if it were also shown that these tenants were in the same position as he was, viz. that they were tenants who had occupied their homes for more than 20 years. With one exception this was not shown. If these other tenants were not in that position it seems likely that their entitlement to possession will, indeed, end on 15 June 2015, at which time the protections in s 52 will no longer apply. The one exception concerns Mr Brizzolara, who is also a long term tenant. However, he gave no evidence of threats to disconnect his utilities. Accordingly, Mr Shirvington has not demonstrated that he is at risk. 19 Nor do I accept, for completeness, that this argument improves if it be shown that the Commonwealth is not fulfilling its obligation of maintenance. These matters being so, there was no argument of substance for the Commonwealth to meet which might engage the inference discussed in Jones v Dunkel (1959) 101 CLR 298. 20 Were the question for me, I would conclude, therefore, that it has not been shown that there is a serious question to be tried as to whether there is a risk that the Commonwealth is going to seek to eject Mr Shirvington from his home on or by 15 June 2015. Its intention is to obtain orders in the Federal Circuit Court giving it possession. Those proceedings are not listed for hearing until July. Further, I do not think that there is a serious question to be tried as to whether the Commonwealth is threatening to cut off Mr Shirvington's utilities before the determination of the proceedings in the Federal Circuit Court. Whilst that threat may have been made to others – a matter about which I make no finding – the evidence is clear that the Commonwealth understands and is abiding by Mr Shirvington's rights under s 94. 21 I prefaced the preceding paragraph with the words 'Were the question for me …' because the question is not for me. In fact the application for the injunction was first heard by Judge Smith in the Federal Circuit Court on 1 May 2015 and dismissed by him on that day. What is presently before this Court is an application for leave to appeal from his Honour's orders, together with an application for expedition. As the application was conducted in this Court, it took the form of an injunction application which was interlocutory to the proposed grant of leave. 22 The orders of Judge Smith dismissing the injunction application were themselves interlocutory, hence leave is required before any appeal can be pursued: Federal Court of Australia Act 1976 (Cth), s 24(1A). Generally, leave will not be granted unless it is shown that the decision in question is attended by sufficient doubt to warrant appellate scrutiny and that substantial injustice will result if leave is refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 (FC). 23 Assuming the first limb in favour of Mr Shirvington, he certainly fails at the second. There is no doubt to my mind that the correct disposition of the application before Judge Smith required its dismissal. There is simply no reason to think that Mr Shirvington's concerns, though in all likelihood genuinely held, are well-founded. He is not about to be ejected from his house before the Federal Circuit Court proceedings have run their course. Nor is he about to lose his utilities whilst those proceedings remain unresolved. Granting leave to appeal would serve, therefore, no purpose. 24 I dismiss the applications for the injunction, leave to appeal and expedition, with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 28 May 2015