[Home] [Databases] [WorldLII] [Search] [Feedback] High Court of Australia

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 (4 March 1971)

CATCHWORDS

HEARING

DECISION

"83A. (1) Where a lessee of prescribed premises dies, and
(a) the spouse of the lessee resided with the lessee
immediately before the death of the lessee and is
actually in possession of the premises immediately
after the death of the lessee ; or
(b) where the spouse of the lessee was not so residing or
is not so in possession or the lessee was not married
at the date of his death, a child of the lessee (being
a child of or over the age of twenty-one years) so
resided and is so in possession,
such spouse or child, as the case may be, shall, subject to
subsection two of this section and until probate or letters of
administration of the estate of the deceased lessee are granted,
have the like right to continue in possession of the premises as
the deceased lessee would have had if he had not died.
In this subsection 'child of the lessee' means, where more
than one child of the lessee so resided and is so in possession,
the elder or eldest of such children.
(2) Proceedings may be taken against such spouse or child,
. . . for the recovery of possession of the premises from him in
accordance with the provisions of this Act as if he were a
lessee of the premises.
(3) Nothing in this section affects any right which such
spouse or child may have upon the grant of probate or letters
of administration to continue in
possession of the premises."(at p 3)

2. By the Landlord and Tenant (Amendment) Act, 1968 s. 83A was amended in a number of respects. In some instances, as for example in relation to par. (d) of sub-s. (1), which had been inserted by the Landlord and Tenant (Amendment) Act, 1964, the amendment took the form of a repeal - the paragraph was omitted. But in other instances of which par. (b) of the subsection is one, the amendment took the form, not in terms of a repeal, but of a mere addition of words to those of the existing paragraph. (at p4)

3. Section 4 (h) of the 1968 amending Act provided that

"The Landlord and Tenant (Amendment) Act, 1948 as
subsequently amended, is further amended -
(i) by inserting in paragraph (b) of subsection one of section
83A after the word 'years' the words 'who, at the date
of the lessee's death, was a protected person or was in
receipt of a pension under the Social Services
Consolidation
Act 1947 (as amended by subsequent Acts)
of the Parliament of the Commonwealth';
(ii) by inserting at the end of the same paragraph the word
'or';
(iii) by omitting from paragraph (c) of the same subsection
the words 'a brother or sister, or the mother or father',
and by inserting in lieu thereof the words 'the father or
mother';
(iv) by omitting from the same paragraph the word 'or'
where lastly occurring ;
(v) by omitting paragraph (d) of the same subsection ;
(vi) by omitting from the same subsection the words 'brother
or sister or the father or mother or other person, as the
case may be 'and by inserting in lieu thereof the words
'or the father or mother';
(vii) by omitting from subsection (1A) of the same section the
symbols and words' '(c) or (d)' and by inserting in lieu
thereof the word and symbols 'or (c)';" (at p4)

4. The female respondent is still in possession of the prescribed premises. On 30th April 1969 the appellant commenced in the Supreme Court of New South Wales an action in ejectment against the respondent in which the female respondent entered an appearance and filed particulars of defence. By these particulars she relied on the facts I have related, there having been no grant of probate or letters of administration of the estate of her father. She then claimed the benefit of s. 83A (1) (b) and asserted that because of the provisions of the Landlord and Tenant (Amendment) Act, s. 69, the Supreme Court was not competent to hear and determine the matter. (at p4)

5. Upon an application by the appellant to strike out the particulars of defence, counsel for the appellant conceded that the Supreme Court's decision in Boyce v. Hughes (1970) 91 WN (NSW) 171 covered the case adversely to his client and that that decision bound his Honour. The judge in chambers acted on this concession and dismissed the appellant's application to strike out the particulars of defence. This Court gave the appellant special leave to appeal against this order. (at p5)

6. Upon this appeal it has been submitted that s. 4 (h) (i) of the Landlord and Tenant (Amendment) Act, 1968 effected a repeal of s. 83A (1) (b) of the Landlord and Tenant (Amendment) Act, 1948- 1952 and that the right to continue in possession to which that paragraph refers did not constitute a right or privilege within the meaning of s. 8 (b) of the Interpretation Act of 1897 (N.S.W.). It was submitted that Boyce v. Hughes (1970) 91 WN (NSW) 171 was erroneously decided and should be overruled. (at p5)

7. The appellant's counsel made an alternative submission that upon its true construction aided as counsel claimed by the general tendency of amendments of the Landlord and Tenant (Amendment) Act, 1948 made by the Landlord and Tenant (Amendment) Act, 1968, s. 4 (h) (i) terminated any existing right of children of a deceased lessee in the position of the female respondent unless they could qualify under the terms of the amended paragraph of s. 83A (1). (at p5)

8. I would first emphasize that s. 4 (h) (i) in terms does no more than add words to the existing provision. It does not in terms repeal that provision. It amends that provision as from the date of the commencement of the amending act. The condition of the operation of the amended provision is "where the lessee of prescribed premises dies". That can only mean, in my opinion, where a lessee of prescribed premises dies after the commencement of the amending act just as in the subsection when originally introduced the condition was that the lessee should die after the commencement of the act introducing the subsection. Section 4 (h) (i) as now amended cannot be read, in my opinion, as making its operation depend upon the condition that the lessee should have died after the commencement of the amending Act of 1952. (at p5)

9. Plainly, in my opinion, the amending Act of 1968 modified for the future as from its commencement the provisions of s. 83A (1). It did so by providing that in the case of a lessee dying after its commencement, there should be additional qualifications to those contained in the existing provisions for a child of the lessee to be entitled to a right to possession of the same kind as that enjoyed by the deceased lessee. In terms it says nothing as to the operation of the section which had already taken place in respect of lessees who had died after the commencement of the 1952 amendment and before its commencement. Nor, in my opinion, is it necessary to imply a repeal of the 1952 provisions in order to give effect to the 1968 amendment. I see no difficulty in the continued operation of the provisions of the 1952 Act with respect to children of lessees who died after the commencement of the amendment effected by that Act and before the commencement of the amendments effected by the Act of 1968. These latter amendments do not purport to have any retrospective operation and I can see no ground to imply such an operation. Consequently we are not concerned here to decide in relation to a repealed provision whether rights acquired under it fall within the terms of s. 8 (b) of the Interpretation Act of 1897. It follows that, in my opinion, the case is not concerned with the operation of s. 8 of the Interpretation Act and that it is not governed by the decision of the Supreme Court in Boyce v. Hughes (1970) 91 WN (NSW) 171 . (at p6)

10. However, if contrary to my own opinion, the Act of 1968 did repeal the relevant provisions of the Act of 1954, Boyce v. Hughes (1) was, in my opinion, rightly decided. I am in respectful agreement with the reasons of Sugerman P. for so deciding. (at p6)

11. On the death of her father the female respondent acquired by virtue of s. 83A (1) as it then stood the same right to continue in possession of the prescribed premises as her deceased father had had but only until the grant of representation of his estate and subject, as was the right of the father, to the provisions of the Act as to the making of orders for possession. (at p6)

12. It was submitted that if it should be held that that respondent now has any right to possession of the prescribed premises, there would be no means by which the appellant could obtain possession. This argument was based on the view that s. 83A (2) as it now stands could only apply to the case of a child who had all the qualifications specified in sub-s. (1) as amended and that as admitedly the female respondent was not so qualified, sub-s. (2) could not apply to her case. But in my opinion, the right to obtain possession of the prescribed premises in the possession of a child of a deceased does not derive from s. 83A (2) but from Pt III of the Act. The function of s. 83A (2) is to deem the child in possession to be a lessee for the purposes of that Part. The provisions of Pt III will therefore be available for the recovery of possession from a child in possession at the time of the death of a lessee parent, whether that child's rights are derived from the operation of the 1952 amendment of the Act or from the 1968 amendment. It will be the provisions of Pt III which are in operation at the time the proceedings under the Act to obtain possession are being heard which will govern the lessor's right to recover possession. (at p7)

13. In my opinion the appeal should be dismissed. (at p7)

McTIERNAN J. I agree with the judgment and the reasons of the Chief Justice. (at p7)

MENZIES J. The respondent, upon the death of her father on 14th September 1958, acquired the same right to continue in possession of the prescribed premises of which the father was lessee as he would have had if he had not died: Landlord and Tenant (Amendment) Act, 1948, s. 83A, as amended in 1952. (at p7)

2. The appellant's case is that the foregoing right to continue in possession was lost upon the enactment of s. 4 (h) (i) of the amendment made to the Act in 1968. (at p7)

3. The relevant legislation is set out in full in the judgment of the Chief Justice and I do not repeat it here. (at p7)

4. Had the law stood on 14th September 1958 as it became in 1968, the respondent would not have had any right to continue in possession of the premises because she was neither a protected person nor in receipt of a pension under the Social Services Consolidation Act 1947 (Cth). (at p7)

5. Counsel for the appellant put forward two alternative contentions to arrive at the result that the respondent lost her right to continue in possession of the premises upon the enactment of the amending Act of 1968. (at p7)

6. The first was that the amending Act repealed s. 83A as amended in 1952 so that it could no longer afford the respondent any rights at all. It was part of this submission that, upon the repeal, her existing rights were not protected by s. 8 (b) of the Interpretation Act of 1897. I reject this contention on the simple ground that the amending Act of 1968 did not repeal and then re-enact s. 83A with a further amendment. It simply further amended s. 83A. Of course it changed the law, but, unless its language indicates a contrary intention, it changed the law merely for the future, so that thenceforward s. 83A operated as amended thereby. (at p7)

7. The second contention was that the language of s. 4 (h) (i) of the amending Act of 1968 shows that it was intended to operate retrospectively in that it is expressed in the past tense, viz. "who, at the date of the lessee's death, was a protected person" etc. Such a reading of the section would confine the protection now afforded by s. 83A as amended to the child of a lessee who, at the date of the death of the lessee, was over twenty-one years of age, was a protected person, was residing with the lessee immediately before his death, and was in possession of the premises immediately after the death of the lessee. (at p8)

8. It is not easy to be satisfied why it is that such a mixture of tenses is to be found in s. 83A as now amended, and in particular why the word "was", rather than the word "is", has been used in s. 4 (h) (i) of the amending Act of 1968. It would, however, be a totally unacceptable construction to confine the operation of the amending section to cases of death of the lessee before the enactment of the amending legislation. This being so, I have come to the conclusion that the use of the word "was" was intended to do no more than emphasize that, for the future, rights are given only when, prior to the death of the lessee, the child of the lessee had become a protected person or a person in receipt of a pension. (at p8)

9. Accordingly, I do not read s. 4 (h) (i) of the amending Act of 1968 as destroying the right to possession which the respondent obtained upon the death of her father in 1958. Her right to continue in possession of the premises is still to be measured by the right that her father would have had if he had not died. (at p8)

10. For this reason I would dismiss the appeal. (at p8)

WINDEYER J. This case turns upon the effect of the Landlord and Tenant (Amendment) Act, 1968 (N.S.W.) - one of a series of complicated enactments that, beginning in 1948, have, in various ways and from time to time, amended the tenancy law of New South Wales. And this is another instance of legislatures amending statute law without expressly either saving or abrogating the consequences of prior events. Today draftsmen do not ordinarily insert saving clauses in bills. When a statute repeals an earlier enactment, the general provisions of the Interpretation Acts are assumed to be sufficient to limit the operation of the new Act and to prevent the disturbance of past transactions and accrued rights. Yet this parliamentary parsimony can create problems, costly for citizens and troublesome for courts. In this Court we recently had occasion to remark on this: and the observations were endorsed by their Lordships in the Privy Council: Ogden Industries Pty. Ltd. v. Lucas [1967] HCA 30; (1967) 116 CLR 537, at pp 544, 571, 581; (1970) AC 113, at p 131 . However, the question now before us is not answered by repeating reproaches. We are not here to give lessons to legislators as to the words they might have used, but to spell out, as best we can, the intention expressed by the words that they have used. (at p9)

2. By virtue of s. 83A (1) of the Landlord and Tenant (Amendment) Act, 1948-1958 (N.S.W.), the respondent, when her father, the lessee of the subject premises, died had, in the words of that section, "the like right to continue in possession of the premises as the deceased lessee would have had if he had not died". This entitlement, which began upon the lessee's death, would endure until probate of a will or letters of administration of his estate was granted. There has been as yet no such grant of probate or letters of administration. (at p9)

3. Section 83A was a new section added, by Act No. 55 of 1952 s. 3 (e), to the statute governing the relations of landlord and tenant. It was amended in 1964, to enlarge the classes of persons entitled to its benefits, and in other ways. These amendments did not touch the respondent. But in 1968 came a further amendment, dictated by a new policy. This time the persons who could claim the benefit of the section were not increased. They were reduced. The respondent does not come within the restricted class of children of a deceased lessee who, since 1968, are entitled to the like right that he would have had if he had lived. Did this 1968 amending Act destroy or disturb rights created by s. 83A (1) as it had previously stood, and which were still subsisting on 13th December 1968, when the new Act came into force? I think not. The question is one of statutory construction and of the effect of the Interpretation Act of 1897 (N.S.W.). As I regard the Interpretation Act s. 8 as the firm base from which I proceed, I shall turn first to it. So far as immediately relevant it is as follows:

"8. Where an Act repeals in the whole or in part a former
Act, then, unless the contrary intention appears, the repeal
shall not -
(a) affect the previous operation of an enactment so
repealed, or anything duly suffered, done, or commenced
to be done under an enactment so repealed; or
(b) affect any right, privilege, obligation, or liability
acquired, accrued, or incurred under an enactment so
repealed."

4. That the provisions similar to s. 8 of the Interpretation Act are as applicable in the case of an amendment effecting a repeal by implication as in the case of an express repeal has been recognized in many cases : what Lindley L.J. said in Heston and Isleworth Urban District Council v. Grout (1897) 2 Ch 306, at p 313 is in point. And in Moakes v. Blackwell Colliery Co. Ltd. (1925) 2 KB 64, at p 70 Scrutton L.J. said : "Now it appears to me that when an Act of Parliament not using the word 'repealed' contains a provision which alters the provisions of a previous Act it repeals that provision." And Pollock M.R. said that s. 38 (2) of the Interpretation Act, 1889 (U.K.) was applicable in such a case, when in Briggs v. Thomas Dryden & Sons. Talbot v. Vickers Ltd. (1925) 2 KB 667, at p 673 , he spoke of it as "a provision intended to apply to all Acts which modify or repeal previous Acts". He did not suggest that, in considering the effect of it, there was any relevant distinction between a modification by amendment and an express repeal. (at p11)

5. Of course if the effect of an amendment be only to extend the duration of an Act was that due to expire, or to extend the territorial locality in which it should operate, or to add to the persons who might claim its benefits or become subject to its obligations, then, in one sense, no repeal is involved. The Act's existing operation in respect of time, place and people is enlarged, not curtailed. It is simply extended for further time, to a new place, or in respect of new people, without its previous effect being in any way abrogated. For that reason Jordan C.J. said that an enlarging amendment of that sort was not a repeal : see Beaumont v. Yeomans (1934) 34 SR (NSW) 562, at pp 569-570 In Ex parte Barker ; Re Luckett (1946) 46 SR (NSW) 235, at p 237 his Honour said of an amendment, thus distinguished from a repeal, that "it adds something, but subtracts nothing". That is a convenient distinction, although in a philosophical sense any addition to the operation of a statute making it applicable to new persons, new places or at further times involves an alteration of its previous limits ; and is thus a repeal of provisions that were implicit. For example, the continuance of a temporary Act involves an abrogation of an implied stipulation that it was not to operate beyond a date certain. Nevertheless, alterations in the nature of extensions are not usually called repeals. They leave previous obligations and rights unaffected without the aid of any saving clause or Interpretation Act. But the amendment of s. 83A (1) (b) that was made in 1968 by the addition of words to that paragraph gave it thereafter a lesser, not a greater, denotation ; and that meant that its earlier wider denotation was pro tanto repealed. To adopt and adapt the phrase used by Jordan C.J. that I have quoted : The scope of the Act had been reduced by a subtraction, not enlarged by addition. The provision continued to be operative, but as from the date of the amendment in its amended form. The respondent did not contest this. Her case is simply that the earlier law was in force when her father died : it has since been repealed, but not so as to affect its previous operation or the right she had acquired under it. (at p12)

6. The appellant's next proposition was that, assuming s. 8 of the Interpretation Act to be applicable, yet the respondent got nothing by it as, it was said, the consequences for her that had resulted from s. 83A (1) (b) as it formerly stood were not a "right" or "privilege" "acquired or accrued" within the meaning of s. 8. I thought this proposition startling. We are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld. It was said that s. 83A (1) created immunities not rights. But I fail to see why an immunity, or exemption from legal consequences, should not be called a right or privilege once it has taken effect and is not merely inchoate. Before 1968 the respondent had "the like right" to continue in possession of the premises as her father had had. But, says the appellant, what was thus called a right was not really a right. On this view, Dixon C.J. ought not - in Arnold v. Mann [1957] HCA 64; (1957) 99 CLR 462, at p 466 - to have described the position of a statutory tenant as a "personal right"; and I must have misused many words in what I wrote in Chelsea Investments Pty. Ltd. v. Federal Commissioner of Taxation [1966] HCA 15; ; (1966) 115 CLR 1, at pp 7-9 . But I do not think so. I am not prepared prepared to say that the Parliament of New South Wales was guilty of a catachresis when it spoke of the "like right". This right was not, strictly speaking, an estate or interest in land. But that is immaterial. It was in jurisprudential language perhaps best classified as a power ; but that does not put it outside the family of rights. I observe, in passing, that in Australian Iron & Steel Ltd. v. Hoogland [1962] HCA 13; (1962) 108 CLR 471, at p 480 Kitto J. said that that case was "one in which an amending Act could not apply without depriving a person . . . of an accrued immunity or defence, that is to say without affecting a previous operation of the former provision, contrary (I would hold) to s. 8 (a) of the Interpretation Act of 1897 (N.S.W.)". That his Honour took a different view from the rest of the Court in that case does not deprive this remark of value. His words make manifest that par. (a), as well as par. (b), of s. 8 is significant for the present case. The right which the respondent claims was acquired by her as a result of "the previous operation" of s. 83A (1), that is to say the operation it had when her father died. (at p13)

7. From what I have said so far it will be clear that my view of this case accords with the decision of the Supreme Court in Boyce v. Hughes (1970) 91 WN (NSW) 171 . I agree with the reasoning of Sugerman J. in that case. The only distinction between that case and this is that there the party in possession after 1968 based his claim on a right acquired under par. (d) of s. 83A (1), which paragraph was expressly repealed in 1968, whereas here the respondent's claim is to a right under par. (b) of s. 83A (1): and that paragraph, as it stood before 1968, was repealed not expressly but by implication. But that, as I have said, in my opinion makes no difference. (at p13)

8. The respondent had acquired a right. She retains it by virtue of the Interpretation Act unless a contrary intention appears in the Act of 1968. I can see no indication of any contrary intention. We are not to import one, as was suggested, by noticing that apparently the legislature, after having by its earlier enactments favoured tenants, turned in 1968 to consider more sympathetically the position of landlords. Doubtless the policy behind a statute may be an aid to its construction; but only when it is revealed by the language of the statute itself or by extraneous facts of which a court can properly take notice. We cannot press too far the admonition of the Digest, 1.3.17: "scire leges non hoc est verba earum tenere, sed vim et potestatem". In the present case there is no special saving provision in the 1968 Act displacing s. 8 of the Interpretation Act, such as was considered in G. F. Heublein and Bro. Inc. v. Continental Liqueurs Pty.Ltd. [1962] HCA 66; (1962) 109 CLR 153 . And, as the Chief Justice has pointed out, the 1968 amendments do not purport to have any retrospective operation. (at p14)

9. It will, I trust, be apparent that I found my opinion on the rights which the respondent got on the death of her father under the law as it was before 1968. I do not seek to interpret the 1968 Act by reference to the provisions it repealed. But, as my brother Gibbs has, in his judgment which I have had the benefit of reading, alluded to what he sees as an error in what I wrote in Australian Iron & Steel Ltd. v. Hoogland [1962] HCA 13; (1962) 108 CLR 471 . I think I should mention this aspect. I there said that when an Act as amended is to be construed, it must be read as if a repealed provision had never existed. That is a mistake if it be taken as an absolute unqualified proposition: and perhaps it were better that I admit my mistake rather than try to explain it, expecially as it occurred in a context which, in my view, has little bearing on the present case. Nevertheless some remarks are I think called for. (at p14)

10. The following passage in Lord Tenterden's judgment in surtees v. Ellison (1829) 9 B & C 750, at p 752 [1829] EngR 594; (109 ER 278, at p 279) has been often cited as a statement of fundamental common law doctrine: "It has been long established, that, when an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule; and we must not destroy that, by indulging in conjectures as to the intention of the legislature." I add to that by way of emphasis what Dixon C.J. said in Maxwell v. Murphy [1957] HCA 7; (1957) 96 CLR 261, at p 267 , which he repeated in Chang Jeeng v. Nuffield (Australia) Pty. Ltd. [1959] HCA 40; (1959) 101 CLR 629, at pp 637-638 . The common law doctrine that an enactment that has been repealed is to be treated thereafter as if it had never existed is subject to an exception in respect of past matters. And it is too sweeping if it be taken as meaning that statute law as it was before it was altered by an amending statute is to be utterly disregarded in construing the amending statute. That obviously is not so, if for no other reason that than the history of any enactment can often be regarded for the purpose of construing it if it be ambiguous or uncertain. The old law was the very "mischief" that the new enactment was passed to repair, and is thus proper to be borne in mind in reading the new provision. Furhtermore, ever since the decision in Attorney-General v. Lamplough (1878) 3 Ex D 214, at pp 223, 231 it has been recognized that the repeal of one enactment in a statute does not necessarily mean that the provisions which remain must be read as if what was repealed had never existed. The question is, What does the Act as amended mean ? and, in ascertaining that, regard may sometimes be had to provisions that have ceased to exist, for they may have stablished the meaning of words that remain. I certainly never meant to deny that. However, it is a theory that has little application when the question is not what is the meaning of enactments that remain after an enactment has been excised, but what is the effect of that which was substituted. In Bradlaugh v. Clarke (1883) LR 8 App Cas 354 Lord Watson said: "It appears to me to be an extremely hazardous proceeding to refer to provisions which have been absolutely repealed, in order to ascertain what the Legislature meant to enact in their room and stead. There may possibly be occasions on which such a reference would be legitimate" (1883) LR 8 App Cas, at p 380 . In Hoogland's Case [1962] HCA 13; (1962) 108 CLR 471 I referred to Te Kloot v. Te Kloot (1894) 15 NSWLR D 1 , as I thought it a good illustration of the kind of case in which it was fitting to say that a repealed provision ceased to have any application to the remainder of the statute whence it was removed. Without meaning to endorse all that was there said, I think it an important decision in the history of the jury in New South Wales and important too because it turned on the effect of s. 7 of the Matrimonial Causes Act, 1884 (N.S.W.), which remained upon the statute book until 1899 when it was re-enacted as s. 76 of the Matrimonial Causes Act, 1899. It was a decision of a Full Court of the Supreme Court (Windeyer, M. H. Stephen and Foster JJ.) upholding the action of the Chief Justice (Darley C.J.) in taking a majority verdict of a jury in a divorce trial in the same circumstances as a majority verdict might have been taken at nisi prius. It is hard to see that s. 7 of the Act of 1884, 48 Vict. No. 3, could be given any other effect after the express repeal of s. 6 by Act 56 Vict. No. 36 s. 1. However, it is not necessary to pursue this here in any detail, for the present case is of a very different kind. (at p15)

11. In the final result I reach the same conclusion as that of the Chief Justice and my brother Gibbs, although, with respect for their approaches, I have proceeded to the same end by a rather different path, taking the Interpretation Act as the beacon that shows the way for me. (at p16)

12. Before leaving the case, I should mention a procedural argument that was advanced for the appellant. It was suggested that to accord to the respondent a continuing right under s. 83A (1) would be to deprive the appellant of any process by which he could recover possession of his premises. This result it was said would flow, as s. 83A (2) as amended would not be available. But that I consider is a mistaken view of the position. The right which the Interpretation Act preserves for the respondent is the right that she acquired under s. 83A (1), being the like right to continue in possession of the premises as the deceased lessee would have had. That right must I consider be measured by the remedies that would have been available to the landlord if the deceased lessee had not died, treating the respondent as if she stood in the lessee's shoes. The process and methods available to a landlord to recover possession of premises are to be found in Pt III of that Act, commencing with s. 62. To recover possession of the subject premises the appellant must bring proceedings in accordance with the provisions of Pt III. Those provisions are of a procedural character and both parties will, I consider, be bound by the forms of process the law provides at the date when proceedings for recovery are taken - either their present from or one resulting by amendment hereafter. (at p16)

13. I would dismiss this appeal. (at p16)

GIBBS J. The appellant on 30th April 1969 commenced an action of ejectment in the Supreme Court of New South Wales to recover possession of premises at Auburn of which he is the owner. The writ was directed to the respondent Mary Iris Burton and to her husband who is now deceased. The respondent entered an appearance to the writ and filed particulars of her defence. The appellant thereupon applied by summons to a judge of the Supreme Court of New South Wales for an order that the respondent's appearance and particulars of defence be struck out and that the appellant be given leave to sign judgment for the recovery of the premises. The learned judge ordered that the summons be dismissed and this appeal is brought by special leave from his order. (at p16)

2. The facts were not in contest. The respondent is the daughter of one Patrick Edmond O'Brien who at his death was the lessee of the premises in question which are "prescribed premises" within the meaning of the Landlord and Tenant (Amendment) Act, 1948 (N.S.W.), as amended ("the Act"). The respondent (who was then over the age of twenty-one years) resided with her father immediately before his death and was actually in possession of the premises immediately after his death. Patrick Edmond O'Brien was a widower and no child of his other than the respondent was residing with him immediately before his death. No grant has been made of probate or letters of administration of his estate. (at p17)

3. It is not disputed that, in these circumstances, after the death of Patrick Edmond O'Brien (which occurred on 14th September 1958), and until the passing of the Landlord and Tenant (Amendment) Act, 1968 (N.S.W.) ("the Act of 1968") the respondent had the like right to continue in possession of the premises as her father would have had if he had not died or that the appellant could only have recovered possession of the premises from her by giving notice to quit in accordance with s. 62 of the Act and then taking proceedings in a court of competent jurisdiction, i.e. a court of petty sessions constituted by a stipendiary magistrate: s. 69 of the Act. This result was brought about by s. 83A of the Act whose material provisions at 14th September 1958 read as follows:

"(1) Where a lessee of prescribed premises dies, and
(a) the spouse of the lessee resided with the lessee
immediately before the death of the lessee and is
actually in possession of the premises immediately
after the death of the lessee; or
(b) where the spouse of the lessee was not so residing or is
not so in possession or the lessee was not married at the
date of his death, a child of the lessee (being a child of
or over the age of twenty-one years) so resided and is
so in possession,
such spouse or child, as the case may be, shall, subject to
sub-section
two of this section and until probate or letters of
administration of the estate of the deceased lessee are granted,
have the like right to continue in possession of the premises as
the deceased lessee would have had if he had not died.
In this subsection 'child of the lessee' means, where more
than one child of the lessee so resided and is so in possession,
the elder or eldest of such children.
(2) Proceedings may be taken against such spouse or child,
as the case may be, . . . for the recovery of possession of the
premises from him in accordance with the provisions of this
Act as if he were a lessee of the premises." (at p17)

4. By the Landlord and Tenant (Amendment) Act, 1964 (N.S.W.), s. 83A was amended so as to expand the class of persons entitled to the protection of the section. The form of pars. (a) and (b) of sub-s. (1) was altered but their substance remained the same. New paragraphs were added to sub-s. (1) to bring within the section brothers and sisters and parents (par. (c)) and "any other person" (other than a lodger or boarder) who had resided with the lessee for not less than two years immediately before his death (par. (d)). None of these amendments in any way affected the position of the parties to this appeal. (at p18)

5. However the section was further amended by s. 4 (h) of the Act of 1968. The policy of the legislature had changed and the class of persons benefited by the section was contracted. The protection given to brothers and sisters and to "any other person" was removed entirely by the omission of words from par. (c) and the complete omission of par. (d). Moreover, par. (b) was amended by inserting words which confine the operation of that paragraph to a child who at the date of the lessee's death was a protected person or was in receipt of a pension under the Social Services Consolidation Act 1947 (Cth), as amended. Since that amendment, s. 83A (1), (1A) and (2) read as follows:

"(1) Where a lessee of prescribed premises dies, and
(a) the wife or husband of the lessee resided with the lessee
immediately before the death of the lessee and is
actually in possession of the premises immediately
after the death of the lessee;
(b) where the wife or husband of the lessee was not so
residing or is not so in possession or the lessee was not
married at the date of his death, a child of the lessee
(being a child of or over the age of twenty-one years
who, at the date of the lessee's death was a protected
person or was in receipt of a pension under the Social
Services Consolidation Act 1947 (as amended by
subsequent
Acts) of the Parliament of the Commonwealth)
so resided and is so in possession; or
(c) where no person referred to in paragraph (a) or (b) of
this subsection was so residing or is so in possession,
the father or mother of the lessee so resided and is so in
possession;
the wife or husband, or such child, or the father or mother
shall, subject to subsection two of this section and until probate
or letters of administration of the estate of the deceased lessee
are granted, have the like right to continue in possession of
the premises as the deceased lessee would have had if he had
not died.
(1A) Where but for this subsection more than one person
would, under paragraph (b) or (c) of subsection one of this
section, have had a right to continue in possession of any
premises, the elder or eldest of the persons so entitled under
such paragraph shall have that right to the exclusion of any
other of those persons.
(2) Proceedings may be taken against the person having
the right under subsection one of this section to continue in
possession of the premises for the recovery of possession of the
premises from him or her in accordance with the provisions
of this Act as if he or she were a lessee of the premises". (at p19)

6. It seems to be common ground that the respondent at the date of her father's death was neither a protected person nor in receipt of a pension of the kind now referred to in par. (b) and it is accepted by the parties that if her father had died after the Act of 1968 had come into operation she would not have acquired under s. 83A any right to continue in possession of the premises. The question is, however, whether she retains the rights to continue in possession which she had from the date of her father's death until the enactment of the Act of 1968, so that the present action of ejectment must fail, notwithstanding that it was instituted after the latter Act had come into operation. (at p19)

7. A similar question was considered by the Court of Appeal of the Supreme Court of New South Wales in Boyce v. Hughes (1970) 91 WN (NSW) 171 . In that case the plaintiff had lived as man and wife with a woman who was the tenant of the dwelling house in which they resided and after the death of the tenant in 1967 continued to reside in the house. It was held that the right to continue in possession of the premises which the plaintiff enjoyed after the death of the tenant was not affected by the Act of 1968. It was assumed that the latter Act effected a repeal of s. 83A (1) (d) and the question in the case, which the Court of Appeal answered in the affirmative, was whether the plaintiff had a right which had been acquired by him or had accrued to him within s. 8 (b) of the Interpretation Act of 1897 (N.S.W.). The appellant conceded before the learned primary judge in the present case that Boyce v. Hughes (1970) 91 WN (NSW) 171 bound the learned judge to dismiss the application but now contends that the decision was erroneous. (at p19)

8. In my opinion, however, the reasoning of Boyce v. Hughes (1970) 91 WN (NSW) 171 is not applicable to the present case, although, for the reasons I shall give, I regard that case as correctly decided. Section 8 (b) of the Interpretation Act of 1897 (N.S.W.) provides as follows:

"Where an Act repeals in the whole or in part a former
Act, then, unless the contrary intention appears, the repeal
shall not -
(b) affect any right, privilege, obligation, or liability
acquired, accrued, or incurred, under an enactment so
repealed."

9. In Beaumont v. Yeomans (1934) 34 SR (NSW) 562, at pp 569-70 , Jordon C.J. said:

"Whether an Act has been repealed or amended is a matter
of substance and not one of form only. One Act may purport
to amend another by repealing part of it. On the other hand,
an amendment may be effected either by the addition to a
section of a particular phrase, or by the repeal of the section
and the substitution of the same words with the phrase
added. . . . And where a provision of an Act is repealed and
re-enacted in a form which enlarges its scope, this has been
construed as amounting in substance to an amendment,
because the new provision has been regarded as intended to
be retrospective so far as it is mere repetition, and prospective
so far as it is new : Ex parte Todd
(1887) 19 QBD 186
."

10. The common law principles have been laid down in many cases, but it is necessary to refer only to two well-known authorities. In In re Athlumney; Ex parte Wilson (1898) 2 QB 547, at pp 551-552, Wright J. said:

"Perhaps no rule of construction is more firmly established
than this - that a retrospective operation is not to be given to
a statute so as to impair an existing right or obligation,
otherwise
than as regards matter of procedure, unless that effect
cannot be avoided without doing violence to the language of
the enactment. If the enactment is expressed in language
which is fairly capable of either interpretation, it ought to be
construed as prospective only."

"The general rule of the common law is that a statute
changing the law ought not, unless the intention appears with
reasonable certainty, to be understood as applying to facts or
events that have already occurred in such a way as to confer
or impose or otherwise affect rights or liabilities which the
law had defined by reference to the past events. But, given
rights and liabilities fixed by reference to past facts, matters
or events, the law appointing or regulating the manner in
which they are to be enforced or their enjoyment is to be
secured by judicial remedy is not within the application of
such a presumption." (at p23)

11. In my opinion when the Act of 1968 was passed the respondent had an existing right to continue in possession of the subject premises. That right had arisen out of, and had been defined by reference to, facts that had occurred before the Act of 1968 was passed. On behalf of the appellant it was submitted that the so-called right was in truth merely an immunity or protection from eviction which endured only so long as the statutory provision creating it remained in force. With all respect, this submission gives insufficient force to the words of s. 83A (1); that subsection purports to create and confer a right of the same kind as the lessee would have had if he had lived and I can see no justification for ignoring these words and refusing to recognize as a right that which the legislature has expressly described as such. It is true that the right was both personal and temporary - it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order putting the respondent out of possession: cf. Druitt v. Crawford (1960) 78 WN (NSW) 110, at p 113 and Condren v. Condren (1967) 86 WN (NSW) (Pt 1) 217, at p 223 . However, to say, in the words of Sugerman P. in Boyce v. Hughes (1970) 91 WN (NSW), at p 173 , that the right "is of a qualified, limited and transitory nature" is to define or explain the nature of the right but is not to deny its existence. (at p23)

12. The presumption of the common law is that this right, having been acquired, should not be affected by the provisions of s. 4 (h) of the Act of 1968 which clearly dealt with matters of substantive law and not with matters of procedure. The same presumption would arise if s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) applied. That section in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v. The Minister for Lands (1895) AC 425, at p 431 ), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v. Ho Po Sang (1961) AC 901 ); but it does protect anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" (Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541, at p 552 ). In Hamilton Gell v. White (1922) 2 KB 422, at p 431 , Atkin L.J. said that s. 38 of the Interpretation Act, 1889 (U.K.) "was not intended to preserve the abstract rights conferred by the repealed Act" and "only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute". In the present case, before the Act of 1968 was passed, all the events specified in s. 83A (1) (b) had occurred, nothing more remained to be done to make effective the right described in s. 83A (1) and the respondent had acquired a right under that subsection which would, therefore, be saved by s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) if this were the case of a repeal rather than an amendment. The appellant places some reliance on the decision of the Court of Appeal in Boddington v. Wisson (1951) 1 KB 606 . In that case a paragraph in a regulation provided that in certain circumstances a notice to quit an agricultural holding should be "null and void", but it was further provided that this paragraph should not apply to any notice if (whether before or after the giving thereof) the Minister consented in writing thereto. A landlord served a notice to quit but did not apply to the Minister for his consent. After the notice was served but before it had expired the regulation was repealed. It was held that s. 38 (c) of the Interpretation Act, 1889 (U.K.) (as applied to the regulations) had no application because the tenant's protection under the regulation could not fairly be described as a "right" or "privilege", and the limitation of the landlord's right could not fairly be described as an "obligation" or "liability", within par. (c) (1951) 1 KB, at p 612 . The decision depended on the view that the regulation, although it used the words "null and void", did not render a notice to quit wholly nugatory and ineffective and that, notwithstanding that the Minister had not consented, the notice was in force, although it was only conditionally enforceable (1951) 1 KB, at pp 610, 611-612 . The case was not one in which a tenant was given a right, even of a qualified kind, to possession, and is quite distinguishable from cases arising under s. 83A (1). (at p24)

13. The question then arises whether an intention is disclosed by the provisions of the Act of 1968 to terminate existing rights acquired under s. 83A (1), except in cases where the persons having those rights would have been eligible to acquire them under the provisions of the amending Act. In my opinion there is nothing in the amending provisions to indicate any intention to affect existing rights. Section 83A (1) both in its original and in its amended form commences with the words "where a lessee of prescribed premises dies". These words appear to me plainly enough to be referring to a death in the future, so that the provisions of s. 83A, when first inserted in the Act by the Landlord and Tenant (Amendment) Act, 1952 (N.S.W.), referred to a death occurring after the latter Act took effect, and the provisions in their present amended form speak of a death after the enactment of the Act of 1968. This view is supported by the fact that the section confers the right only on (inter alios) a child who "is" in possession of the premises. On behalf of the appellant it is said that s. 83A (1) (b) uses the past tense in the expressions "was not so residing" and "so resided", but plainly these words were used because the legislature is referring to a situation which, regarded as at a date in the future, had occurred in the past, and they do not weaken the conclusion that the section only applies where a lessee dies after its enactment. So far from rebutting the presumption that the amendment does not affect existing rights, the words of the section seem to me to support it. (at p25)

14. On behalf of the appellant it is submitted that the Act of 1968 shows a general intention to strengthen the hands of landlords and to narrow the area of protection available to persons in possession of prescribed premises. That this is so may explain why the Act was passed, but it does not assist in deciding whether it was intended that the making of the amendments should affect existing rights. (at p25)

15. Finally, on behalf of the appellant, it is submitted that the provisions of s. 83A (2) provide an indication that it was the intention of the legislature that a right to continue in possession under that section will only exist if the person who claims it satisfies the requirements of sub-s. (1) in their amended form. Subsection (2) provides that proceedings may be taken against "the person having the right under subsection one of this section to continue in possession" and it is submitted that, since the amendment of sub-s. (1) in 1968, sub-s. (2) enables proceedings to be taken only against a person whose right to continue in possession is based on sub-s. (1) in its amended form, and provides no means of proceeding against a person who acquired a right to continue in possession under sub-s. (1) in its previous form. Therefore, it is said, it cannot have been intended to preserve existing rights in persons from whom a landlord could never recover possession. In my opinion, this submission cannot be maintained. Since the Act of 1968, sub-s. (1) continues to apply in its unamended form to facts which occurred before its amendment took effect and applies in its amended form to facts occurring subsequently. A person who acquired a right under sub-s. (1) in its unamended form, and who retains that right, is just as much a person "having the right under subsection one of this section to continue in possession" as is a person who acquired his right under the amended subsection. Even where a right was acquired under par. (d) of sub-s. (1), which has been repealed, and that right is preserved by s. 8 (b) of the Interpretation Act of 1897 (N.S.W.), the description in sub-s. (2) remains applicable. The words "under subsection one of this section" are words descriptive of the right to which sub-s. (2) refers and in using them the legislature intended to refer to a right which arose under sub-s. (1) even if it arose under part of that subsection which has since been repealed or amended. In this regard it may be added (with great respect to the different opinion expressed in Te Kloot v. Te Kloot (1894) 15 LR NSW (D) 1, at p 4 and Australian Iron & Steel Ltd. v. Hoogland [1962] HCA 13; (1962) 108 CLR 471, at p 490 ) that the weight of authority favours the view that it is permissible to have regard to a repealed portion of an Act for the purpose of construing what remains : see Attorney-General v. Lamplough (1878) 3 Ex D 214, at pp 223 227-228, 231, 234 ; Re Donaldson (1889) 23 SALR 141, at p 143 ; Roberts v. Collector of Imposts [1919] VicLawRp 93; (1919) VLR 638, at p 643 ; London and West Australian Exploration Co. Ltd. v. Ricci [1906] HCA 72; (1906) 4 CLR 617, at pp 636-637 ; R. v. Foster Ex parte Gillies (1937) QSR 67, at pp 93-94 ; Chapman v. Kirke (8). In determining the meaning of the words "the person having the right under subsection one of this section to continue in possession" one may therefore look at sub-s. (1) in the form which it had at the time when the alleged right in question is said to have arisen. (at p26)

16. For the reasons I have given I hold that on the facts stated the respondent, until representation of the estate of her father is granted, has the right given by s. 83A (1) of the Act to continue in possession of the premises and that the appellant may only recover possession of the premises from her by proceedings in a court of competent jurisdiction taken in accordance with the Act and cannot successfully bring an action of ejectment in the Supreme Court. It follows that the application was rightly dismissed. (at p26)

17. I would dismiss the appeal. (at p26)

ORDER