Le Brocque v Mason [1956] HCA 78; (1956) 96 CLR 213 (14 December 1956)

HIGH COURT OF AUSTRALIA

LE BROCQUE v. MASON [1956] HCA 78; (1956) 96 CLR 213

High Court of Australia
Dixon C.J.(1), McTiernan(1), Fullagar(1), Kitto(1) and Taylor(1) JJ.

Appeal - Landlord and tenant - Statute - Alternative construction - State Court - Decision - Quaere, satisfactory - Appeal to High Court - Special leave refused - Decision doubtless acted upon - Similar subsequent matter - High Court - Attitude - Landlord and Tenant (Amendment) Act 1948-1954, ss. 2, 6A (3) (a), 81 (1).

HEARING

Sydney, 1956, November 19; December 14. 14:12:1956
APPLICATION for special leave to appeal.

DECISION

December 14.
THE COURT delivered the following written judgment: -
This is an application for special leave to appeal from an order of the Full determination of a magistrate dismissing an information for an offence. The information charged an offence under s. 81 (1) of the Landlord and Tenant (Amendment) Act 1948-1954. That section provides that "a person shall not, without the consent of the lessee of prescribed premises, or without reasonable cause . . . do, or cause to be done, any act, or omit, or cause to be omitted, any act whereby the ordinary use or enjoyment by the lessee of the premises . . . is interfered with or restricted". It was alleged in support of the information that the defendant, without the consent of one Mrs. Pamela June Ogilvie, described as the lessee of certain prescribed premises, namely a room at 152 Castlereagh Street, Sydney, and without reasonable cause did an act whereby the ordinary use or enjoyment by the said lessee of the said premises was interfered with. In fact Mrs. Ogilvie was not a lessee of the room in question within the ordinary sense of the word "lessee". The premises at 152 Castlereagh Street, Sydney, are prescribed premises. They form what is called a private hotel. Mrs. Ogilvie occupied a room in the private hotel for which she paid seven pounds a week. She was in the sense of the general law a licensee of the room. The offence against s. 81 which the defendant was charged with committing consisted in ejecting her from that room. In order to support the charge it was necessary for the informant to show that Mrs. Ogilvie, although the licensee of the room under the general law, was to be regarded as a lessee for the purposes of the Landlord and Tenant (Amendment) Act. For that purpose the informant relied upon s. 6A (3) (a) of that Act. The effect of that provision in its application to the present case was already the subject of a decision of the Supreme Court of New South Wales. It is a decision which the applicant seeks to impugn by this application for special leave. (at p217)

2. In Rowland v. Leslie-Rounding (1956) SR (NSW) 290; 73 WN 366 the Full Court of the Supreme Court placed upon sub-s. (3) (a) of s. 6A an interpretation which renders the provision inapplicable to the facts of the present case. It was for that reason that the information was dismissed by the magistrate. (at p217)

3. In the present case the proprietors of the private hotel held the premises as lessees in the ordinary sense. Mrs. Ogilvie held her room from the proprietors as licensee. The informant contends that the fact that at the same time the room was included within a lease and included within a licence brings it within sub-s. (3) (a) of s. 6A. The material part of that sub-section provides that: "Where any prescribed premises . . . are after the commencement of the Landlord and Tenant (Amendment) Act 1954, occupied by any person for the purposes of residence under an agreement or arrangement whether oral or in writing of leave and license for the use thereof . . . and such premises or any part of such premises or the premises of which such premises form a part have, after the thirtieth day of June, one thousand nine hundred and forty-nine, been the subject of a lease (whether the lease was entered into before or after that date), the prescribed premises shall . . . be deemed to be 'special premises' for the purposes of this Act." Sub-section (2) of s. 6A provides in effect that in the case of "special premises" the Act shall apply, subject to certain modifications, as if leave and license were a lease, a licensee a lessee, a licensor a lessor, and the consideration for the leave and licence were rent. The applicant maintains that it follows that for the purpose of s. 81 Mrs. Ogilvie should be treated as a lessee and the defendant, who acted for the proprietors of the private hotel, should be treated as having done an act whereby the enjoyment of "the lessee" of the premises was interfered with. (at p218)

4. According to the contention of the applicant, sub-s. (3) (a) operates to make s. 81 applicable by reason of the existence after 30th June 1949, of a lease (i.e. the lease to Mrs. Ogilvie's licensor) of premises of which Mrs. Ogilvie's room forms a part. The construction which the Supreme Court in Rowland v. Leslie-Rounding (1) placed upon the sub-section would make it applicable only if Mrs. Ogilvie's room had been after 30th June 1949, itself the subject of a lease before it became subject to the licence granted to her. (at p218)

5. In support of his application for special leave to appeal the learned Solicitor-General of New South Wales challenged the correctness of this decision, saying that, in effect, it ignored the words "or any part of such premises or the premises of which such premises form a part", which occur in the sub-section. He also said that this interpretation of the section was contrary to that which had been adopted in the administration of the Act, that the decision was relatively recent, and that it had a general operation with some important consequences. (at p218)

6. The decision was in fact given on 6th June 1956. On 23rd July 1956 in Brisbane an application to this Court for special leave to appeal was made in that case itself by the lessor, who, as it happened, was the person aggrieved by the actual decision. The Court refused the application for special leave. It is true that not all the matters now urged by the Solicitor-General were then put before the Court. But the refusal of special leave in July has doubtless meant that the decision in Rowland v. Leslie-Rounding (1956) SR (NSW) 290; 73 WN 366 has been acted upon. The statutory provision in question is one which is capable of involving penal consequences, and the fact that special leave to challenge it has been refused on a previous occasion is a circumstance which, while not, of course, conclusive, tends against the granting of the present application. (at p219)

7. The decision in Rowland v. Leslie-Rounding (1956) SR (NSW) 290; 73 WN 366 may be open to criticism, and may be thought not to give full effect to the language of the statute. But it attributes a definite policy to the legislature. In the course of his judgment Owen J. said: "Section 6A (3) (a) was introduced into the Act to meet a practice on the part of one-time lessors, including sub-lessors, who had by one means or another been able to determine leases or sub-leases which had been granted over residential premises, thereafter to allow the former lessee or some new occupant to occupy the premises as a licensee, thus avoiding the restrictions on eviction for which the Landlord and Tenant (Amendment) Act provides. Residential premises previously occupied by tenants or sub-tenants were instead being occupied under licence agreements. It was to give a licensee in such cases protection against the right of the licensor to terminate the licence that s. 6A (3) (a) was passed" (1956) SR (NSW), at p 291; 73 WN, at p 367 (at p219)

8. The policy thus ascribed to the legislature is not only definite but reasonable. The wider interpretation for which the Solicitor-General contended would produce some very remarkable consequences, and consequences which it does not seem likely that the legislature intended. It would seem indeed to make the position of a licensee in many cases depend on whether his licensor was himself a lessee or an owner in fee. If this were really intended, it would not seem very difficult to make it plain. If something else were intended, that something else could be made plain. On any view the intention of the legislature is imperfectly expressed, and, in all the circumstances, including the fact that special leave was refused in Rowland v. Leslie-Rounding (1956) SR (NSW) 290; 73 WN 366, we do not think that this Court should now undertake anew the task of choosing between unsatisfactory alternatives. (at p219)

9. We are of opinion that the application should be refused. (at p219)

ORDER

Application refused.