Commissioner of Housing of the ACT v Debrah Rosemary Little [1996] ACTSC 58 (12 June 1996)

SUPREME COURT OF THE ACT

COMMISSIONER FOR HOUSING FOR THE ACT v. DEBRAH ROSEMARY LITTLE
No. SCA 107 of 1994
Number of pages - 10
Landlord and Tenant - Crown

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Landlord and Tenant - recovery of possession - jurisdiction conferred on Magistrates Court by sub-s.23(1) of the Landlord and Tenant Act 1899 (New South Wales) - Magistrate declines to proceed on ground that appellant should have exercised choice to bring proceedings "under" Landlord and Tenant Act 1949 - fundamental principle that courts do not decline jurisdiction - appeal upheld.

Landlord and Tenant - relationship between 1899 and 1949 Acts - jurisdiction to order recovery of possession conferred on Magistrates Court by 1899 Act - 1949 Act restricts right of recovery of "prescribed premises" and confers discretionary powers on Magistrates Court to refuse to order - no choice whether proceedings for recovery brought "under" one Act or the other.

Crown - 1949 Act does not bind Crown - whether Commissioner of Housing of ACT entitled to Crown immunity - it is.

Landlord and Tenant Act 1899 (New South Wales)

New South Wales Acts Application Act 1984, Part 21 of Schedule 2
Housing Assistance Act 1987, s.16
Landlord and Tenant Act 1949
Magistrates Court (Civil Jurisdiction) Act 1982, s.5
Trade Practices Act 1974 (Cth)
Australian Capital Territory (Self-Government) Act 1988, s.7
Local Government Act 1919
Landlord and Tenant Act 1899, sub-s.23(2)

Commissioner of Housing v. Smith (unreported, 14 March 1995, Supreme Court

of the ACT)

Sankey v. Whitlam (1977) 21 ALR 457
Shire of Sutherland v. James (1963) 63 S.R. 273
Townsville Hospital Board v. Townsville City Council (1982) 149 CLR 283
Bradken Consolidated Limited and Another v. The Broken Hill Proprietary

Company Limited and Others [1979] HCA 15; (1978) 145 CLR 107

Housing Commission of New South Wales v. Panayides (1963) S.R. (N.S.W.) 1
North Sydney Council v. Housing Commission (NSW) (1948) 48 SR 281

HEARING

CANBERRA, 2 February 1996
12:6:1996

Counsel for the appellant: Mr. R. Crowe

Solicitors for the appellant: ACT Government Solicitor

Amicus Curiae: Mr. P. Christensen

ORDER

THE COURT ORDERS THAT:
1. The appeal be upheld.

2. The appellant be entitled to recovery of possession of the premises at 12 Jenner Court, Wanniassa.

3. The proceedings be remitted to the Magistrates Court for the purpose of considering the issue or the postponement or suspension of the issue of a warrant in accordance with sub-s.23(2) of the Landlord and Tenant Act 1899 (New South Wales).

4. There be no order as to the costs of the appeal.

DECISION

MILES CJ This is an appeal from a decision of a Magistrate who refused to order that the appellant recover possession of certain land. The matter came before the Magistrates Court in proceedings commenced by the appellant as landlord, claiming that the interest of the tenant had been determined by notice to quit. The Magistrates Court had jurisdiction to determine the proceedings in accordance with sub-s.23(1) of the Landlord and Tenant Act 1899 (New South Wales) (the 1899 Act), which continued in force in the Australian Capital Territory after 1 January 1911. The text of the 1899 Act as it was at 10 August 1984 comprises Part 21 of Schedule 2 to the New South Wales Acts Application Act 1984. The 1899 Act has been amended from time to time since 1984.

2. The tenant, the respondent to the appeal, was not represented at the hearing before the Magistrate or on the appeal. Mr. Christensen, a legal practitioner employed by the Welfare Rights and Legal Centre, was given leave to appear on the appeal as a friend of the Court and I am obliged to him and Mr. Crowe of counsel, who appeared for the appellant, for their assistance.

3. The Magistrate did not make any findings of fact necessary to found an order for recovery of possession. I am satisfied, however, that there was evidence before the Magistrate sufficient to prove the following facts:

1. The appellant became the registered proprietor of land and
premises at 12 Jenner Court, Wanniassa, also known as Block 15
Section 172 Wanniassa in the Australian Capital Territory, on 10
January 1994.
2. The premises were under the control of the appellant
pursuant to s.16 of the Housing Assistance Act 1987 (the Housing
Assistance Act).
3. The premises were used as a domestic residence by the
respondent and were therefore prescribed premises within the
Landlord and Tenant Act 1949 (the 1949 Act).
4. On 1 March 1990 the premises were let to the respondent on
a fortnightly tenancy at a weekly rental of $53.
5. On 14 April 1994 the rent for the premises was in arrears
in the sum of $3,374.47.
6. On 29 April 1994 the tenancy was determined by a valid and
duly served notice to quit dated 14 April 1994.

4. I assume that there was evidence that the respondent refused and neglected to give up possession at the date of hearing and that the respondent was served with a summons or other process giving notice of the hearing before the Magistrate.

5. The Magistrate stated that he refused to make the order for recovery of possession on the ground that the proceedings before him were brought "under" the 1899 Act whereas the appellant should have exercised a choice to bring the proceedings "under" the 1949 Act. The Magistrate discussed this matter at length and it is not necessary to set out his decision in detail. The Magistrate was concerned that the respondent as Commissioner for Housing of the Australian Capital Territory was responsible for the implementation within the Territory of the Commonwealth/State Housing Agreement of 1 March 1990 (the Agreement) which is Schedule 1 to the Housing Assistance Act. The Australian Capital Territory is shown as a party to the Agreement. In particular the Magistrate was concerned about the respondent's adherence to a provision in the Agreement that "people in rental housing shall have security of tenure". The Magistrate thought that the appellant should conduct itself as a model landlord and that it was not in the spirit of the Agreement that the appellant bring the proceedings "under" the 1899 Act rather than "under" the 1949 Act. These and other passages in the Magistrate's decision suggest that he thought that the respondent was disadvantaged or discriminated against because no landlord other than the appellant "would have the capacity to access the (1899) NSW Act".

6. It is clear that the Magistrate was not purporting to exercise a discretion to refuse to order recovery of possession once the elements of the right of recovery were made out such as that available under s.4 of the Recovery of Lands Act 1929. Higgins J has recently decided the extent of those discretionary powers: Commissioner of Housing v. Smith (unreported, 14 March 1995, Supreme Court of the ACT), but the Recovery of Lands Act has no application to the land in the present case. Nor was the Magistrate purporting to exercise the power to grant equitable relief as part of the jurisdiction conferred upon the Magistrates Court by s.5 of the Magistrates Court (Civil Jurisdiction) Act 1982. That jurisdiction includes the granting of relief against forfeiture in proceedings for recovery of possession which are otherwise within the jurisdiction of the Magistrates Court by virtue of sub-s.23(1) of the 1899 Act.

7. On the contrary the Magistrate considered that it was because sub-s.23(1) of the 1899 Act does not provide the Magistrates Court with the discretionary powers to refuse an order for recovery of possession that are contained in s. 71 of the 1949 Act that he decided not to proceed to determine the proceedings before him. In short, the Magistrate declined to exercise jurisdiction.

8. Many important points of law were raised during the hearing of the appeal. It is not necessary to decide them all. On the substantial matter of the Magistrate declining to exercise jurisdiction instead of determining the proceedings before him, the Magistrate was clearly in error. It is hardly necessary to cite authority. The principle is fundamental. To decline jurisdiction is inconsistent with the judicial oath to do right to all manner of people according to law. If the law is distasteful, the task may be unwelcome but the judicial duty must be discharged. There are rules of procedural fairness which might require a judge or magistrate to step aside from determining proceedings. For instance, a judge or magistrate who has an interest or appears to have an interest in a case may properly disqualify himself or herself, or may decline to proceed until a party has been given notice, and so forth. But none of that applies here. As Hutley AJA put it in Sankey v. Whitlam (1977) 21 ALR 457:

"When seized of a matter, except for good cause, the
Magistrate must complete it."

9. Belief that invoking the very jurisdiction which the law confers on the court gives an unfair advantage to one of the parties is not good reason for declining that jurisdiction. That is really enough to dispose of the appeal. In deference to counsel I will mention two other matters raised in argument.

10. The relationship of the 1899 Act to the 1949 Act may not be widely understood anymore. The 1899 Act was one of the consolidating Acts of that period in New South Wales which put together much of the law relating to landlord and tenant in what had been a colony and was about to become a State. It left untouched the jurisdiction of the Supreme Court in common law actions for ejectment. It granted a new procedural remedy which enabled a landlord wishing to recover possession of land from a tenant to resort to the summary jurisdiction of a Magistrates Court as an alternative to bringing an action of ejectment in the Supreme Court. At that time law and equity in New South Wales were administered in separate jurisdictions of the Supreme Court. An action in ejectment had to be brought in the common law jurisdiction of the Supreme Court. Relief against forfeiture could be obtained only by application to the Supreme Court in equity. It was long considered that despite the equivalent of sub-s.23(1) complex questions of law and matters of equity were not appropriate to be decided in proceedings in a court of summary jurisdiction: e.g. Shire of Sutherland v. James (1963) 63 SR 273. All that went long ago as far as this Territory is concerned. The appropriate course in the Supreme Court of the Australian Capital Territory, which has always exercised a fused jurisdiction in law and equity, is to seek an order for recovery of possession (see Order 14 Rule 8). Furthermore, the Magistrates Court, as previously indicated, has an equitable jurisdiction co-ordinate with its jurisdiction in law, which is to be exercised in determining proceedings for recovery of possession of land brought under sub-s.23(1) of the 1899 Act. It is clear that, absent some other statutory provision, the question whether a landlord is entitled to an order for recovery of possession, whether the proceedings are in the Supreme Court or in the Magistrates Court, must be determined according to principles of law and equity and that there is no general discretion to refuse an order once the entitlement is made out.

11. This is where the Landlord and Tenant Ordinance 1949 (as it originally was) may become relevant. It is well known that legislation of this nature was enacted throughout Australia in an endeavour to cope with housing and accommodation problems following the end of World War II. The 1949 Act restricts the rights of landlords to recover possession of premises where the premises are prescribed premises. Section 63 allows the determination of a tenancy of prescribed premises only by notice to quit on one or more of several specified grounds. Section 71 empowers a magistrate to refuse an order for recovery of possession upon one or more of a number of specified discretionary grounds, including the hardship that would be caused to either party by the making of an order or the refusal of an order. Those discretionary grounds go beyond the equitable principles of relief against forfeiture.

12. Section 70 of the 1949 Act provides that the Magistrates Court has jurisdiction under Part III of the 1949 Act but the jurisdiction to bring proceedings for recovery of possession is not conferred under Part III.

13. The 1949 Act does not exclude the operation of sub-s.23(1) of the 1899 Act. The 1899 Act is the source of jurisdiction and still provides the framework of the procedure whereby a landlord may bring proceedings for recovery of possession in the Magistrates Court. The 1949 Act, where it applies, prevents the landlord from determining the tenancy except in accordance with the requirements of the 1949 Act and allows the Magistrate to refuse to make an order for recovery of possession by the exercise of the specified discretionary powers.

14. It is a misconception of the relationship between the 1899 and 1949 Acts to approach them as if each provides for mutually exclusive procedures or proceedings. The two Acts do not result in a choice having to be made between proceedings "under" or "pursuant to" one Act or the other. As I have already indicated, the jurisdiction in proceedings for recovery of possession of land, and the machinery for invoking such jurisdiction is provided for in sub-s.23(1) of the 1899 Act. But if the premises are prescribed premises for the purposes of the 1949 Act, then the landlord may not give a notice to quit nor take any proceedings to recover premises except in accordance with Part III of the 1949 Act. Part III of the 1949 Act does not confer jurisdiction for recovery of possession additional to or alternative to the proceedings provided for in sub-s.23(1) of the 1899 Act.

15. The second matter that arose on the appeal and on which counsel made extensive submissions was whether the appellant is entitled to take advantage of the provision in the 1949 Act (s.60) that "this Act (other than s.40) shall not bind the Crown". (Section 40 provides for abolition of distress for rent and is irrelevant.) Mr. Christensen submitted that the appellant is not entitled to rely on this exemption from the operation of the 1949 Act and that because the premises are prescribed premises under the 1949 Act, the appellant has to show that it has complied with the requirements of the 1949 Act. If the submission is correct, the Magistrate would have the discretionary powers under s.71 of the 1949 Act to refuse to make an order.

16. It is not strictly necessary that the Court decide on this appeal whether or not the appellant is exempted by s.5 of the 1949 Act from the requirements of that Act. If the decision were to be that the appellant is not bound by the 1949 Act, future litigants would be entitled to say that the question was not decided after properly directed argument presented on behalf of parties with a direct interest in the outcome of the case. Nevertheless Mr. Christensen, as friend of the Court, put before it two authorities which he said led to a conclusion that the appellant was not entitled to the privileges of the Crown in accordance with s.5 of the 1949 Act.

17. In Townsville Hospital Board v. Townsville City Council (1982) 149 CLR 283, it was held that the Queensland Act which created the Townsville Hospital Board did not reveal an intention that the Board should have the privileges and immunities of the Crown when constructing a building and that it was bound by local government laws relating to approval. Gibbs CJ said at 291, the other members of the High Court agreeing:

"All persons should prima facie be regarded as equal before
the law and no statutory body should be accorded special
privileges and immunities unless it clearly appears that it was
the intention of the legislature to confer them. It is not
difficult for the legislature to provide in express terms that a
corporation shall have the privileges and immunities of the Crown
and when it does not do so, it should not readily be concluded
that it had that intention."

18. A somewhat different point arose in Bradken Consolidated Limited and Another v. The Broken Hill Proprietary Company Limited and Others [1979] HCA 15; (1978) 145 CLR 107 in which it was held that the Trade Practices Act 1974 (Cth) does not bind the Crown in right of a State, because there must be express words or necessary implication to that end, especially where a statute of the Commonwealth Parliament is expressed to bind the Commonwealth in right of the Commonwealth without any reference to the Crown in right of a State.

19. Although the matter is far from clear, I tend to the view that the appellant, the Commissioner of Housing for the Australian Capital Territory, is entitled to rely on Crown exemption from the provisions of the 1949 Act. One looks primarily at the Housing Assistance Act 1987, which is expressed to be "an Act to make provision with respect to housing assistance and for related purposes". The Commissioner is established as a corporation sole (s.7) and is the public servant for the time being performing the office in the Government Service, the duties of which include performing the functions of the Commissioner for Housing (sub-ss.4(2), 4(3)). Those functions include administering, on behalf of the Territory, programs and funding arrangements for the delivery of housing assistance in the Territory in relation to a number of matters, including public rental housing and income related assistance to tenants: sub-s.8(1). The Commissioner shall perform his or her functions in accordance with any directions given by the Minister: sub-s.8(2). Housing commission programs are subject to particular ministerial control: see s.12.

20. As Gibbs ACJ said in Bradken at 115, an important question is whether the body whose status is in question is subject to direct ministerial control and the greater the degree of control the more likely it is that it is an agent of the Crown and entitled to its privileges and immunities. The Australian Capital Territory is a body politic under the Crown: Australian Capital Territory (Self-Government) Act 1988, s.7. The Australian Capital Territory is itself a party to the Agreement. The Housing Assistance Act is aimed in part at implementation of the Agreement, housing assistance to residents of the Territory being part of the function of government of and within the Territory. The implementation of the agreement is in furtherance of the responsibilities of the Territory as a component, however characterised, of the Australian political and constitutional system. In my view, the Housing Assistance Act was intended to confer on the Commissioner for Housing the powers, responsibilities and privileges of the Crown.

21. I note that in Housing Commission of New South Wales v. Panayides (1963) SR (NSW) 1 the Supreme Court of New South Wales in Banco held that for the purposes of certain sections of the Landlord and Tenant Act 1899-1960 of that State (which have no counterpart in the 1899 Act as it applies in the ACT), it was decided that the Housing Commission of New South Wales was entitled to the privileges and immunities of the Crown. The same Housing Commission was held to represent the Crown for the purposes of the Local Government Act 1919 and was not bound by the provisions of that Act relating to control of building and construction: North Sydney Council v. Housing Commission (NSW) (1948) 48 SR 281.

22. The question remains whether as a consequence of upholding the appeal the Court should remit the proceedings to the Magistrates Court. To do so would lead to further cost and duplication of effort. On the evidence, it was incumbent upon the Magistrate to make the findings of fact which have already been set out above. On those findings of fact it was established that there was a relationship of landlord and tenant between the appellant and respondent, and that the tenancy had been terminated by service of a valid note to quit. There was no avoiding an order that the appellant is entitled to recovery of possession of the premises.

23. The remaining question is whether a warrant should issue or whether the issue of a warrant should be postponed or suspended under sub-s.23(2). That is a question which was entirely one for the Magistrate in the exercise of discretion conferred by the 1899 Act and the proceedings should be remitted to him for decision on that matter.

24. The appeal is upheld. The Court orders that the appellant is entitled to recovery of possession of the premises at 12 Jenner Court, Wanniassa, also known as Block 15 Section 172 Wanniassa in the Australian Capital Territory. The proceedings are remitted to the Magistrates Court for the purpose of considering the issue or the postponement or suspension of the issue of a warrant in accordance with sub-s.23(2) of the Landlord and Tenant Act 1899. No order as to the costs of the appeal.