Australian Red Cross Society v Beaver Trading Company Pty Ltd [1947] HCA 60; (1947) 75 CLR 320 (19 December 1947)

HIGH COURT OF AUSTRALIA

H C of A

19 December 1947

Rich, Dixon and Williams JJ.

A. R. Taylor K.C. (with him Reynolds), for the respondents in support of the objection.

Wallace K.C. (with him Brereton), for the appellant.

The following written judgment was delivered by:?

Dec. 18

Rich, Dixon and Williams JJ.

This appeal is brought by way of case stated from a decision of a magistrate dismissing informations by the appellant society as landlord against the respondents as its tenants praying that the appellant society might be put into possession of the land and premises occupied by the respondents. The questions in the appeal turn upon the National Security (Landlord and Tenant) Regulations. The respondents have taken an objection to the competence of the appeal upon the ground that no appeal lies as of right, at all events by case stated, from the decision of the magistrate.

The Landlord and Tenant Regulations have been amended by Statutory Rules 1947 No. 31, which came into operation on 14th March 1947. The proceedings were instituted after that date. The effect of reg. 58, so far as material, is to prohibit a lessor of prescribed premises giving any notice to terminate the tenancy or taking proceedings to recover possession of the premises from the lessee unless upon certain prescribed grounds and unless proceedings to recover possession are taken in what is called a court of competent jurisdiction. By reg. 62B (1) it is provided that for the purposes of reg. 58 in the State of New South Wales courts of competent jurisdiction shall be courts of summary jurisdiction. Relying presumably upon s. 6 (3) (c) of the Defence (Transitional Provisions) Act 1946, reg. 62B (2) proceeds to provide that the court of a State thus specified shall, subject to Part III. of the regulations and within the limits of its jurisdiction (other than limits as to the value or rent of premises) be vested with Federal jurisdiction in proceedings under this part. Regulation 65A (1) provides that, except as provided in that regulation, there shall be no appeal (other than an appeal to the High Court) in proceedings under this part from a judgment or order of a court of competent jurisdiction referred to in reg. 62B. Sub-regulation (2) of reg. 65A goes on to provide that there shall be an appeal as to questions of law only to the Supreme Court of the State concerned from any judgment or order of a court in proceedings under Part III. of the regulations.

The appellant, in appealing as of right by way of case stated, has assumed that Section IV. of the Appeal Rules of this Court governs the procedure, and that s. 39 (2) (b) of the Judiciary Act 1903-1946 gives an appeal as of right. The jurisdiction of the Court to entertain an appeal rests, of course, upon s. 73 (ii.) of the Constitution, which provides that the High Court shall have jurisdiction, with such exceptions and subject to such regulations as Parliament prescribes, to hear appeals from orders of any court exercising Federal jurisdiction. No exception has been made which would cover this case, and we do not think that there can be any question of the Court's jurisdiction to entertain an appeal. But the question whether the appellant is entitled to invoke the jurisdiction as of right is another matter. Section 39 (2) (b) of the Judiciary Act, upon which the appellant rests, provides in effect that where the leading part of s. 39 (2) (b) vests a State court with Federal jurisdiction, then if an appeal lies from a decision of any court of a State to the Supreme Court of the State, an appeal from its decision may be brought to the High Court. Paragraph (c) of s. 39 (2) provides that the High Court may grant special leave to appeal to the High Court from any decision of any court of a State notwithstanding that the law of the State may prohibit any appeal from such court. If s. 39 (2) applies to the case it therefore seems clear that, supposing there is no appeal as of right, we may nevertheless grant special leave to appeal pursuant to par. (c) of s. 39 (2). The respondents' reason for denying that under par. (b) of s. 39 (2) an appeal lies as of right is that, according to the respondents' submission, in such a case as this no appeal lies from the decision of the magistrate to the Supreme Court, at all events by way of case stated.

Section 31 (2) of the Landlord and Tenant Act 1899 of New South Wales gives to any person who feels aggrieved by any order, adjudication or warrant made or issued under the provisions of Part IV. of that Act, a remedy in the nature of an appeal by way of statutory prohibition under the Justices Act 1902-1947 N.S.W.. It appears from Ex parte Dwyer[1] , that this provision has been construed as displacing what otherwise might have been the general operation of the Justices Act to confer a right of appeal upon a party aggrieved by a decision in a proceeding under the Landlord and Tenant Act. Ex parte Dwyer[2] was concerned with an attempted appeal to Quarter Sessions, and not with a recourse to a proceeding by case stated under s. 101 of the Justices Act, but it depended upon the view that the appointment by a particular statute of a special remedy operated in accordance with the maxim generalia specialibus non derogant to exclude the general remedies given by the Justices Act. It is said, moreover, that under s. 31 (2) of the Landlord and Tenant Act it is considered that a landlord who fails to obtain an order against a tenant for the recovery of possession is not a person who is aggrieved by an order, adjudication or warrant made or issued under Part IV. of the Landlord and Tenant Act. No direct authority was, however, produced adopting this view of the application of the State statute.

It is not desirable that we should deal with matters of procedure and practice under State law further than we need when they are involved indirectly as they are here. We shall therefore limit ourselves to the question of the case stated as an admissible procedure in proceedings under Part IV. of the Landlord and Tenant Act. We take Ex parte Dwyer[3] supported as it is by the observations of Jordan C.J. in his reference to that case in Robertson v. Manders[4] , as showing that a case stated is not an admissible mode of appeal in such proceedings. In so far, therefore, as the appellant is compelled to rely on a right of appeal given by State law to warrant the form of appeal it has taken, it appears to us that it cannot bring itself within Section IV. of the Appeal Rules or s. 39 (2) (b) of the Judiciary Act. It was suggested, however, that it was not compelled to rely upon the provisions of State law for the purpose of justifying its appeal by way of case stated.

It is first suggested that its proceeding is under Part III. of the Landlord and Tenant Regulations without reference at all to the provisions of the New South Wales Landlord and Tenant Act. We think this view is not correct. Part III. of the Landlord and Tenant Regulations assumes the existence of procedure under State law by which a landlord may recover possession of premises from his lessee or obtain an order of ejectment of the lessee therefrom. It then proceeds to regulate such proceedings and to confer a Federal jurisdiction to act in pursuance of the regulations. But Part III. does not lay down a complete code of procedure under Federal law. It presupposes the existence of remedies under State law and, so to speak, adopts, adapts and controls them.

It was then suggested that under reg. 65A (2) a positive right of appeal is given to a landlord as well as to a tenant independently of State law, and that the language of s. 39 (2) (b) of the Judiciary Act is sufficiently wide to apply to a Federal right of appeal to the Supreme Court so given and, so to speak, transmute it into a right of appeal to the High Court. We doubt whether a regulation such as reg. 65A (2), expressed with reference to a limited right of appeal to the Supreme Court, should be given an effect which produces an unlimited right of appeal to the High Court by the application of par. (c) of sub-s. (2) of s. 39. But, in any case, the suggestion, ingenious as it is, does not overcome the difficulty that Section IV. of the Appeal Rules is by its language made dependent for its operation upon the existence of a procedure under State law for appealing to the Supreme Court. When, in Robertson v. Manders[5] , Jordan C.J. speaks of reg. 65A necessitating, in its context, the application of ss. 101 to 111 of the Justices Act to appeals upon questions of law as far as practicable, we understand his Honour as laying it down that the procedure by case stated should be adopted as a matter of practice, because it is a suitable procedure and is in use in the like case. That is something different from what rule 1 of Section IV. of the Appeal Rules of this Court contemplates when it refers to the manner, times and conditions prescribed by the law of the State for bringing appeals to the Supreme Court in like matters.

Still another suggestion is that reg. 62B operates to confer Federal jurisdiction quite independently of s. 39 of the Judiciary Act. The consequence might be that upon the Federal jurisdiction so conferred s. 73 (ii.) of the Constitution operated so that the Court's jurisdiction to allow an appeal existed, but nevertheless there was no legislation giving a right of appeal or to regulate the Court's authority to admit an appeal by requiring that special leave should be a condition. We think that a general survey of Part III. of the Landlord and Tenant Regulations shows that it was not intended to establish a new Federal jurisdiction entirely independent of the Federal jurisdiction which, before the amendments made by Statutory Rule No. 31 of 1947, s. 39 (2) operated to confer: see Grosglik v. Grant [No. 1]2(1947) 74 C.L.R. 327. [No. 2]3(1947) [1947] HCA 1; 74 C.L.R. 355..

The regulations create a "matter" , that is a controversy, question or claim of right, which would fall within s. 76 of the Constitution. Section 39 (2) would apply to such a matter. The procedure invokes State jurisdiction to some extent, or rather what would otherwise be State jurisdiction if it was not for s. 39. The purpose of s. 39 is to cover the whole ground in such a case, and we do not think that Part III. of the Landlord and Tenant Regulations should be construed as making a provision completely independent of that operation. Rather it is ancillary to or explanatory of, if not supplementary to, s. 39.

We are therefore of opinion that the case is governed by s. 39 (2) of the Judiciary Act and that the appellant has not succeeded in bringing itself within par. (b) of that sub-section and Section IV. of the Appeal Rules. His case nevertheless falls within par. (c) and is one in which we are authorized to grant special leave to appeal if we think fit.

Counsel for the Australian Red Cross Society then applied for special leave to appeal and argument ensued on the merits.

Special leave to appeal refused. No order as to costs.

Solicitors for the appellant-applicant, Stephen, Jaques & Stephen.

Solicitors for the respondents, Dawson, Waldron, Edwards & Nicholls.

1. (1908) 8 S.R. (N.S.W.), at p. 331.

2. (1908) 8 S.R. (N.S.W.) 329.

3. (1908) 8 S.R. (N.S.W.) 329.

4. (1947) 47 S.R. (N.S.W.), at p. 438; 64 W.N., at p. 129.

5. (1947) 47 S.R. (N.S.W.), at p. 440; 64 W.N., at p. 129.