FEDERAL COURT OF AUSTRALIA Dattilo v The Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) [2017] FCA 1061 Appeal from: Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Dattilo & Anor (No. 2) [2017] FCCA 1320 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Jelfs & Anor (No. 3) [2017] FCCA 1321 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Kenney & Anor (No. 2) [2017] FCCA 1323 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Kenney (No. 2) [2017] FCCA 1326 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Leahy (No. 2) [2017] FCCA 1319 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Lukic (No. 2) [2017] FCCA 1318 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Minici & Anor (No. 2) [2017] FCCA 1316 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Odzic & Anor (No. 2) [2017] FCCA 1324 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Shirvington (No. 4) [2017] FCCA 1315 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Patrick & Anor (No. 2) [2017] FCCA 1328 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Uren & Ors (No. 2) [2017] FCCA 1014 Commonwealth of Australia (as represented by the Department of Infrastructure and Regional Development) v Watkins & Anor (No. 2) [2017] FCCA 1325 File number: NSD 930 of 2017, NSD 926 of 2017, NSD 932 of 2017, NSD 931 of 2017, NSD 927 of 2017, NSD 928 of 2017, NSD 929 of 2017, NSD 933 of 2017, NSD 924 of 2917, NSD 925 of 2017, NSD 841 of 2017, NSD 1058 of 2017 Judge: GRIFFITHS J Date of judgment: 5 September 2017 Catchwords: PRACTICE AND PROCEDURE – applications to dismiss proceedings for non-appearance and want of prosecution – applications for lump sum costs orders – applications granted Legislation: Federal Court Rules (Cth) rr 35.32, 40.02 Date of hearing: 5 September 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 16 Counsel for the Applicants: The applicants did not appear Counsel for the Respondent: Mr J Doyle Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 930 of 2017 BETWEEN: GIUSEPPE DATTILO First Applicant CATERINA DATTILO Second Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicants pay the respondent's costs of the proceeding fixed in the lump sum of $2,326. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 926 of 2017 BETWEEN: KIM JELFS Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $2,121. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 932 of 2017 BETWEEN: PATRICK KENNEY Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $2,351. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 931 of 2017 BETWEEN: PAUL KENNEY Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicants pay the respondent's costs of the proceeding fixed in the lump sum of $2,351. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 927 of 2017 BETWEEN: ALAN LEAHY Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $2,351. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 928 of 2017 BETWEEN: NIKOLA LUKIC Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $2,096. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 929 of 2017 BETWEEN: GUISEPPE MINICI First Applicant MARIA MINICI Second Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicants pay the respondent's costs of the proceeding fixed in the lump sum of $2,351. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 933 of 2017 BETWEEN: STOJAN ODZIC First Applicant MELITTA ODZIC Second Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicants pay the respondent's costs of the proceeding fixed in the lump sum of $2,096. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 924 of 2017 BETWEEN: KEN SHIRVINGTON Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $1,806. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 925 of 2017 BETWEEN: KEN SHIRVINGTON Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for an extension of time and leave to appeal filed on 14 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $1,806. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 841 of 2017 BETWEEN: SANDRA UREN Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for leave to appeal filed on 27 May 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $13,096. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1058 of 2017 BETWEEN: LORRAINE WATKINS Applicant AND: THE COMMONWEALTH OF AUSTRALIA (AS REPRESENTED BY THE DEPARTMENT OF INFRASTRUCTURE AND REGIONAL DEVELOPMENT) Respondent JUDGE: GRIFFITHS J DATE OF ORDER: 5 SEPTEMBER 2017 THE COURT ORDERS THAT: 1. The interlocutory application for leave to appeal filed on 30 June 2017 is dismissed pursuant to r 35.32(c) and (d) of the Federal Court Rules 2011 (Cth). 2. The applicant pay the respondent's costs of the proceeding fixed in the lump sum of $11,289. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GRIFFITHS J: 1 These 12 proceedings have a long history. In essence, they relate to steps which have been taken by the Commonwealth to terminate the applicants' tenancies and obtain possession of their land which is required because of its proximity to the proposed Western Sydney Airport. There have been multiple proceedings in the Federal Circuit Court of Australia (FCCA), the Federal Court and the High Court. The current proceedings relate to 12 applications for leave to appeal against orders of the FCCA made on either 18 May or 23 June 2017 in which warrants were issued for the Commonwealth to take possession of the relevant land. On those occasions Judge Smith extended time to permit the Commonwealth to apply for warrants for possession under s 121 of the Residential Tenancies Act 2010 (NSW). The applicants also sought in this Court stays pending the determination of their individual applications for leave to appeal, as well as extensions of time. For convenience I will refer to these matters in the Federal Court as the applicants' interlocutory applications. Aspects of each of those interlocutory applications were unsuccessful in proceedings which were heard and determined by either Justice Burley or Justice Rares in this Court. 2 The applicants' interlocutory applications came before me for a first case management hearing on 18 July 2017. None of the applicants appeared on that day. The matters were stood over to 1 August 2017. It was noted in the Court's orders dated 18 July 2017 that the Commonwealth may seek to have the proceedings dismissed. The Commonwealth also foreshadowed a lump sum costs order in respect of each of the applicants' unsuccessful interlocutory applications. 3 On 1 August 2017 the matters came before me for a second time. Again there was no appearance by any of the applicants. The Court ordered the Commonwealth to take reasonable steps to notify each of the applicants of its intention to apply to have the proceedings dismissed and to obtain a lump sum costs order. Orders were also made for the Commonwealth to file and serve evidence describing the notification steps taken and evidence in support of the proposed lump sum costs applications, and for each of the applicants to file and serve any evidence in response. The matters were listed for hearing of any application for dismissal and for a lump sum costs order today, 5 September 2017. 4 When the matters were called for hearing this morning there was no appearance by any of the applicants. Mr Peter King of counsel appeared as a matter of courtesy to explain that he was no longer retained in respect of any of the applicants. The Court expressed its gratitude to Mr King for taking the time to attend the Court today and to explain the background to the applicants no longer having legal representation. 5 The Commonwealth relies upon three affidavits in support of its oral applications, all affirmed by Benjamin James May, its solicitor. The first is an affidavit dated 22 August 2017. It provides a costs summary of the lump sum costs orders sought by the Commonwealth in respect of each of the twelve proceedings. The total sum sought is in the amount of $46,040.00, which is further broken down by reference to each of the following 12 proceedings in the following manner: Proceeding Applicant Total 1 NSD 930 of 2017 Giuseppe Dattilo & Caterina Dattilo $2,326 2 NSD 926 of 2017 Kim Jelfs $2,121 3 NSD 932 of 2017 Patrick Kenney $2,351 4 NSD 931 of 2017 Paul Kenney $2,351 5 NSD 927 of 2017 Alan Leahy $2,351 6 NSD 928 of 2017 Nikola Lukic $2,096 7 NSD 929 of 2017 Giuseppe Minici and Maria Minici $2,351 8 NSD 933 of 2017 Stojan Odzic and Melitta Odzic $2,096 9 NSD 924 of 2917 Ken Shirvington $1,806 10 NSD 925 of 2017 Ken Shirvington $1,806 11 NSD 841 of 2017 Sandra Uren $13,096 12 NSD 1058 of 2017 Lorraine Watkins $11,289 6 The lump sum costs orders relate to the proceedings which were heard and determined by Justices Burley or Rares and to the proceedings before me. 7 In the body of his first affidavit, Mr May provides detailed information relating to the proceedings the subject of the lump sum costs claims and the various steps taken by the Commonwealth in respect of each of the 12 proceedings, both as to the applications for leave to appeal and the stay applications. He also provides information concerning the hours spent on each of the matters and information concerning the charge out rates and counsels' fees in respect of each matter. I accept Mr May's statement that the lump sum costs sought in respect of each applicant are less than a third of the actual legal fees incurred by the Commonwealth. I also accept that the element which relates to counsels' fees reflects daily rates which are towards the lower end of the range set out in the National Guide to Counsels' Fees dated 28 June 2013. 8 Mr May has also affirmed a second affidavit dated 22 August 2017 in which he describes at great length all of the steps taken by the Commonwealth to notify the applicants in each of the 12 proceedings of the Commonwealth's proposed applications, including the fact that the proceedings were listed for hearing today. It is unnecessary to describe all those steps. Having read Mr May's affidavit, which includes material which demonstrates that although many of the applicants previously had legal representation by either the People's Solicitors or Roderick Storie solicitors, such legal representation ceased from late June 2017 in the case of the former firm and from 7 August 2017 in the case of the latter firm. Both firms filed notices of ceasing to act in mid-August 2017. 9 Mr May's second affidavit also describes at considerable length the steps taken by the Commonwealth to obtain and use contact details for each of the applicants in circumstances where none of them was legally currently represented. Those steps include seeking to obtain alternative postal addresses, conducting property searches, searching Departmental records for email addresses, conducting postal redirection searches, conducting "skip tracing", obtaining telephone numbers and, in some cases, achieving personal service in the case of proceedings NSD 930, 928 , 929, 924 and 925 of 2017. I am satisfied that the Commonwealth has taken all reasonable steps to inform the various applicants of these proceedings, and, in particular the fact that today the Commonwealth would apply to have the matters dismissed and also seek lump sum costs orders. 10 Mr May also affirmed a third affidavit, dated 4 September 2017, which describes the Commonwealth's notification steps up during the period from 22 August 2017 to 4 September 2017. 11 It is desirable to now describe affidavits which have been filed and served by three of the applicants in the 12 proceedings. 12 In NSD 841 of 2017, Ms Sandra Uren affirmed an affidavit dated 28 August 2017. Ms Uren states that she is unable to attend the Court because of work commitments. She is working as a temporary primary school teacher and has a work contract until the end of the year but her future employment is otherwise unknown. Ms Uren said that she did not have the funds to engage any further legal representation. Ms Uren complains that she is liable to pay any of the Commonwealth's costs in circumstances where her costs in the State Tribunal (NCAT) would have been capped at $47.00. Ms Uren states that she has no savings and only minimal assets, the largest being her car worth $6,000 which she needs for her work. She says that she will not be able to meet any orders for a lump sum in relation to her and that any such order would cause her enormous hardship. Ms Uren asked that all costs be dismissed but she then sought a costs order in her favour in the amount of $18,360.00, which reflects a return of her rent over 2.5 years because of alleged breaches by the Commonwealth as landlord. 13 In NSD 925 of 2017, Mr Ken Shirvington affirmed an affidavit dated 28 August 2017. He said that he had no legal representation and was sleeping in his car after his eviction. He acknowledged that he had received various documents from Mr May but said that he did not understand some of their contents and found them "overwhelming". He acknowledged that he understood that there would be a court hearing today but added that he did not have legal advice and was disillusioned about how the justice system has worked in his case. He said that he would not be able to attend the hearing as he was trying his best to clear his properties. 14 In NSD 1058 of 2017, Ms Lorraine Watkins swore an affidavit dated 29 August 2017. She described the serious challenges and difficulties presented by her eviction, primarily because of the special needs of her son, David, who requires full-time care and has a severe intellectual disability. She attached an undated medical report describing David's serious intellectual disabilities. She also describes attempts she has made to obtain alternative suitable accommodation for her and David. Ms Watkins said that she would not be able to attend Court on 5 September 2017 due to her circumstances and also because of the difficulty of bringing David to Court and the impossibility of leaving him with anyone else because he becomes very distressed without her. 15 Each of these three affidavits evokes considerable human sympathy. The matters contained therein, however, do not provide any sufficient basis in law for refusing to make the orders sought by the Commonwealth. I have no doubt that the matters raised in each of these affidavits will be taken into account by the Commonwealth in deciding whether or not to enforce the lump sum costs orders against these three applicants and, possibly, against any of the other applicants who may, to the Commonwealth's knowledge, be in similar dire circumstances. These are matters for the Commonwealth to take on board having regard to the individual circumstances of each of the applicants. 16 Having regard to all the matters described above, I am satisfied that these are appropriate cases in which to make orders dismissing the proceedings under r 35.32(c) and (d) of te Federal Court Rules 2011 (Cth) (FCRs). None of the applicants appeared today and there has been a want of prosecution by all of them in respect of their interlocutory applications in this Court. I consider that it is also appropriate to make the lump sum costs orders as sought by the Commonwealth. I am satisfied that the material provided by the Commonwealth satisfies the requirements of r 40.02 of the FCRs and also complies with the Court's Guide for Preparing a Costs Summary. Orders will be made accordingly. I direct the Commonwealth to prepare draft orders which give effect to these reasons for judgment. Orders will then be made in Chambers. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate: Dated: 6 September 2017