Commissioner of Housing of the ACT v Julie Elizabeth Pearce [1996] ACTSC 59 (12 June 1996)

SUPREME COURT OF THE ACT

COMMISSIONER FOR HOUSING FOR THE ACT v. JULIE ELIZABETH PEARCE
No. SCA 108 of 1994
Number of pages - 2
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. $P
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)

Commissioner for Housing v. Little (No. SCA 107 of 1994)

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 6 Hoddinott Street, 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 The appeal in this matter was heard at the same time as the appeal of the Commissioner for Housing v. Little (No. SCA 107 of 1994). For practical purposes the facts are similar to those in the other appeal and the principles are identical. The order of the Court is that the appeal be upheld. The appellant is entitled to recovery of possession at premises at 6 Hoddinott Street, Wanniassa also known as Block 3 Section 210 Wanniassa in the Australian Capital Territory. The proceedings be remitted to the Magistrates Court for consideration of the issue of a warrant or the postponement or suspension of the issue of a warrant under sub-s.23(2) of the Landlord and Tenant Act 1899. No order as to the costs of the appeal.