Courts And Judicial System - case stated by Magistrate's Court.

Leases And Tenancies - residential tenancy - "statutory tenancy" - source and terms - determination - court's discretion to issue a warrant of ejectment - relevant considerations - lessee's right to resist ejectment - "holding over" - tenancy at sufferance - powers and functions of Commissioner for Housing as lessor.

Equity - availability of equitable relief from forfeiture.

Statutes - interpretation - the meaning of "may" - usage - manner in which discretion is conferred - Interpretation Act 1967, s26(3) requires "may" to be interpreted as conferring a discretion - sequence of amendments - explanatory memoranda.

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), ss6, 192

Recovery of Lands Act 1929 (ACT), ss3, 4, 5, 6, 7, 8, 9

Repatriation Act 1920 (Cth)

Interpretation Act 1967 (ACT), s26(3)

Acts Interpretation Act 1901 (Cth), s33(2A)

ACT Interpretation Act, s11

Housing Assistance Act 1987, s9

Australian Capital Territory (Planning and Land Management) Act 1988 (Cth),

ss28, 29

Australian Capital Territory (Self-Government) Act 1988 (Cth), s22

Crown Proceedings Act 1992 (ACT), s5

Judiciary Act 1903 (Cth), Part IX

Landlord and Tenant (Amendment) Act 1948 (NSW)

Forfeiture of Leases Act 1901 (NSW)

New South Wales Acts Application Act 1984 (ACT), Schedule 2 pt 14

Re M (1924) 26 WALR 115

Lugg v Wright (1941) SASR 106

Re Dunsborough District's Country Club Inc (1982) WAR 321

Ex parte Gleeson [1907] VicLawRp 71; (1907) VLR 368

Harvey v Harvey (1951) 68 WN (NSW) 241

Re Hassell (1984) 55 ALR 219

Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24

Hyman v Rose (1912) AC 623

Swardheath Properties Ltd v Tabet (1979) 1 WLR 285

Canas Property Co Ltd v K L Television Services Ltd (1970) 2 QB 433

Jakucs v Bartlett (1963) NSWR 1468

Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd (1976) WAR 49

Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VicRp 54; (1989) VR 584

Howard v Fanshawe (1895) 2 Ch 581

Esanda Finance Corporation Ltd v Plessing and another [1989] HCA 7; (1989) 166 CLR 131

Kickham v R (1882) 8 VLR 1

R v Dale [1906] VicLawRp 103; (1906) 12 ALR 549

Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5

Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1

Instructing solicitors: Welfare Rights and Legal Centre

The questions in the case stated be answered as follows:

1. Does s.4 of the Recovery of Lands Act 1929 confer a discretion

upon a Magistrate, to be exercised in the circumstances of the

particular case, to issue or refuse to issue a warrant therein

described?

Yes.

2. If a discretion is conferred upon a Magistrate by s.4 of the

Recovery of Lands Act 1929 can the following factors be taken

into account in the exercise of that discretion:

a. Any hardship which would be caused to the lessee or any other

person by the issue of a warrant?

Yes.

b. Whether any reasonably suitable alternative accommodation in lieu

of the subject land is, or has been since the date upon which the

subject lease was determined, available for the occupation of the

lessee?

Yes.

c. Conduct of the lessee, including but not limited to:

i) The breach of any lease covenant?

ii) The breach of undertakings given by the lessee to the

Commissioner for Housing to maintain the payment of rent

payable pursuant to the subject lease and to make payments in

reduction of rental arrears that have arisen under that lease?

iii) Disturbance by the lessee of the amenity of neighbouring

householders and the environs surrounding the leased premises?

iv) Any steps taken by the lessee to remedy any breaches by him or

her of lease covenants?

Yes.

d. Demand for accommodation held by, and under the control of, the

Commissioner for Housing, pursuant to the provisions of the

Housing Assistance Act 1987, by persons eligible to lease such

accommodation from the Commissioner for Housing?

Yes, but that consideration is more relevant to whether it is practicable for suitable alternative accommodation to be found for the respondent.

e. The policies stated or inherent in any applicable housing

assistance program prepared by the Commissioner for Housing, and

approved by the Minister, pursuant to s.12 of the Housing

Assistance Act 1987?

Yes.

3. Does a refusal by Magistrate to issue a warrant applied for under

s.4 of the Recovery of Lands Act 1929, in circumstances where the

subject lease has been validly determined pursuant to s.3 of that

Act, create a statutory tenancy and, if so, what is the source

and terms of the statutory tenancy?

A "statutory tenancy" is created which is merely a right to resist ejectment. A tenant so holding over will continue to be bound, whether by conditions imposed by a Magistrate or the law applicable to tenants at sufferance, to obey the relevant terms of the expired lease. A Magistrate has jurisdiction to reinstate the lease by granting relief against its forfeiture.

HIGGINS J This is a case stated by Magistrate Dingwall pursuant to s192 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT). That section provides:

At the request of a party to proceedings, the court may state, in

the form of a special case, for the opinion of the Supreme Court any

question of law that arises in the proceedings.

Jurisdiction is vested in the Supreme Court to hear and determine a

case stated under this section.

2. The case stated was posed in the following terms:

Statement of Facts

1. The Applicant is a corporation sole established by the Housing

Assistance Act 1987 whose functions are set out in s.8 of that Act.

2.The Respondent is 21 years of age and, with her 4 year old

daughter, occupies a two bedroom flat leased to her by the Applicant

pursuant to the Applicant's powers contained in s.9 of the Housing

Assistance Act 1987.

3. Under the lease agreement the Respondent was required to pay a

rent of $148.50 per fortnight. The Applicant rebated this amount by

$92.00 per fortnight and thus the Respondent was to pay a net rent

of $56.50 per fortnight.

4. The Respondent currently receives the Sole Parent Pension and

$312.00 per month by way of Child Maintenance payments. Her total

income including Additional Family Payment is $632.65 per fortnight.

5. As of the 12 December 1993 the Respondent had accumulated rent

arrears amounting to $1328.80. The Applicant decided to terminate

her tenancy but took no action to evict her at that stage.

6. The Respondent appealed the decision to terminate the lease to

the Housing Review Committee of the Applicant, an administrative

review body established by the Applicant.

7. The Housing Review Committee recommended that the Applicant not

proceed to an eviction on condition the Respondent make certain

regular payments of rent and arrears to the Applicant.

8. The Respondent defaulted on the condition and, pursuant to s.3 of

the Recovery of Lands Act 1929 ("the Act"), the Applicant determined

her lease. On 2 March 1994 the Respondent was served with a Notice

of Determination of her lease in the form of Form A of the Schedule

to the Act and in compliance with s.3 of the Act. The notice

required her to deliver up possession of the subject land before

17 March 1994.

9. On 17 March 1994 the Respondent was served with a notice in the

form of Form D of the Schedule to the Act notifying her that unless

she delivered up possession of the subject land before 29 March 1994

the Applicant would apply to the Magistrates Court for the issue of

a warrant under s.4 of the Act.

10. The hearing of the Applicant's application for the issue of a

warrant commenced on 10 May 1994. Evidence was taken and some

submissions made on that day.

11. The evidence presented on behalf of the Applicant established

that all the requirements of s.4 of the Act had been satisfied and

that, subject to the issue of discretion raised in this Case Stated,

the Applicant was entitled to the order sought.

12. The Respondent gave evidence in her own case. She stated that

her rent defaults were largely due to her overspending because of a

serious and long-standing gambling habit. She further stated she

had made concerted efforts to cease gambling and had not gambled for

some 4 months prior to the hearing. She also stated that prior to

the hearing she was pregnant, but later the pregnancy miscarried.

At the time of miscarriage she was over 5 months pregnant. The

Respondent said her failure to comply with the condition of the

Housing Review Committee was due to her inability to cope with the

event and sequel of the miscarriage.

13. The Respondent gave evidence that prior to the hearing she had

arranged with her bank to make direct debits from her account to the

Applicant's account for rent and arrears payments. Further, that

she was taking steps to collect a substantial amount of arrears of

maintenance payments from the father of her child. The Child

Support Agency would not assist in the matter, but she was

consulting the Legal Aid Office with a view to obtaining its

assistance in recovering the arrears in the Magistrates Court. She

also stated that if successful in collecting the arrears she would

use the money to satisfy her debt to the Applicant.

14. The Respondent gave evidence to the effect that her

accommodation options were extremely limited. She stated she could

not afford private rental accommodation; that her mother and

stepfather lived in Canberra, but she could not live with them due

to a history of extreme violence suffered by her at the hands of her

stepfather; and that she had no other relatives or friends in the

Australian Capital Territory with whom she could reside.

Argument by Counsel

15. It was argued by Counsel for the Respondent that, under s.4 of

the Act, a Magistrate has a discretion to issue a warrant. Also,

that in the exercise of that discretion the Court may take into

account factors which may mitigate the tenant's failure to comply

with lease covenants. And further, that it was relevant to take

into account the consequences, viz. any hardship to the tenant as a

result of the issuing of a warrant.

16. Counsel for the Respondent argued that a refusal to issue a

warrant would give rise to a statutory tenancy in favour of the

Respondent.

17. The reply by Counsel for the Applicant was that, if s.4 confers

a discretion, it is limited to the scope, object and purpose of the

Act; that the mitigating factors raised by Counsel for the

Respondent are not relevant to the exercise of the discretion; and

that the refusal to issue a warrant would not give rise to a

statutory tenancy, but would render the Respondent a trespasser.

18. Prior to hearing final submissions I indicated to Counsel that I

saw significant uncertainty in the legislation regarding the

existence of a discretion, the method of its exercise if it exists

and the consequences of its exercise in favour of the Respondent.

19. Pursuant to s.192 of the Magistrates Court (Civil Jurisdiction)

Act 1982, the Respondent has requested this Court to state a special

case for the opinion of the Supreme Court. I have acceded to this

request.

Case Stated

The following questions are asked:

1. Does s.4 of the Recovery of Lands Act 1929 confer a discretion

upon a Magistrate, to be exercised in the circumstances of the

particular case, to issue or refuse to issue a warrant therein

described?

2. If a discretion is conferred upon a Magistrate by s.4 of the

Recovery of Lands Act 1929 can the following factors be taken into

account in the exercise of that discretion:

a. Any hardship which would be caused to the lessee or any other

person by the issue of a warrant?

b. Whether any reasonably suitable alternative accommodation in lieu

of the subject land is, or has been since the date upon which the

subject lease was determined, available for the occupation of the

lessee?

c. Conduct of the lessee, including but not limited to:

i) The breach of any lease covenant?

ii) The breach of undertakings given by the lessee to the

Commissioner for Housing to maintain the payment of rent payable

pursuant to the subject lease and to make payments in reduction of

rental arrears that have arisen under that lease?

iii) Disturbance by the lessee of the amenity of neighbouring

householders and the environs surrounding the leased premises?

iv) Any steps taken by the lessee to remedy any breaches by him or

her of lease covenants?

d. Demand for accommodation held by, and under the control of, the

Commissioner for Housing, pursuant to the provisions of the Housing

Assistance Act 1987, by persons eligible to lease such accommodation

from the Commissioner for Housing?

e. The policies stated or inherent in any applicable housing

assistance program prepared by the Commissioner for Housing, and

approved by the Minister, pursuant to s.12 of the Housing Assistance

Act 1987?

3. Does a refusal by Magistrate to issue a warrant applied for under

s.4 of the Recovery of Lands Act 1929, in circumstances where the

subject lease has been validly determined pursuant to s.3 of that

Act, create a statutory tenancy and, if so, what is the source and

terms of the statutory tenancy?

3. The essential question is, therefore, whether a Magistrate has a discretion to decline to make an order under s4 of the Recovery of Lands Act 1929 (ACT) (ROL Act) notwithstanding that the applicant for such an order has established all necessary pre-conditions for the making of such an order.

4. The arguments of counsel before me were similar to those put to the learned Magistrate and referred to in the case stated.

5. It is true, as Mr Bayliss for the applicant argued, that "may" has sometimes been interpreted to mean "must" or "shall". That is another way of expressing the view that where a power is conferred on a body or person to do something if, and only if, certain conditions are fulfilled then there may be a duty to exercise that power once the body or person is satisfied that those pre-conditions have been met.

6. For example, in the matter of Re M (1924) 26 WALR 115, the Registrar General was given power to correct errors in the Register upon proof of such an error. Despite the use of "may" in the statute rather than "shall" it was held there was no discretion to refuse to correct an error so demonstrated: see also Lugg v Wright (1941) SASR 106; Re Dunsborough District's Country Club Inc (1982) WAR 321.

7. Nevertheless, even when it is unlikely that an order will be refused once the conditions enabling it to be made are established, the conferral of a power to make such an order by use of the word "may" will usually import a discretion to make or refuse to make such order.

8. In the matter of Ex parte Gleeson [1907] VicLawRp 71; (1907) VLR 368, an order was sought declaring premises to be a common gaming house. Cussen J noted in relation to the use of the word "may", at 373:

The authorities clearly indicate that it lies upon those who assert

that the word "may" has a compulsory meaning to show, as a matter of

construction of the Act, taken as a whole, that it was intended to

have such a meaning.

9. His Honour noted the serious effects of a declaration and the protection of the public to be achieved from the making of it. Having regard to evidence that the offending use had ceased and would not be resumed, his Honour was satisfied that he could decline to make the order sought. The order was declined accordingly.

10. Similarly, in Harvey v Harvey (1951) 68 WN (NSW) 241, a provision empowering a court to hear an application in camera was held to use "may" in a permissive sense.

11. In Re Hassell (1984) 55 ALR 219, Toohey J reviewed the authorities as to the usage in statutes of the word "may". His Honour was particularly impressed in relation to relevant provisions of the Repatriation Act 1920 (Cth) that the word "shall" was used, in contrast to "may" in different contexts, thus supporting the view that "may" was intended to confer a discretion.

12. The ROL Act uses "may" in s3. That empowers the determination of a lease where that course becomes lawful by reason of any law or provision of the lease. It could not be suggested that any lessor would be required to determine a lease merely because lawful cause to do so had arisen. The term "may" in this section therefore confers a discretion.

13. Section 5 of the ROL Act states that, if the Minister or the Minister's delegate desires to seek an ejectment warrant, then a prescribed notice "shall" be served on the lessee. It can readily be accepted that "shall" is used in a mandatory sense in this section.

14. Section 6 of the ROL Act states that the notice of intention to apply for a warrant "may" be incorporated with the notice of determination of the lease or the notice requiring possession, whichever is the appropriate notice. "May" is clearly used in a permissive or discretionary sense.

15. Section 7 ROL Act states that certain documents and an affidavit of service thereof upon the lessee "shall" be left with the Registrar before the date upon which the application is to be made. The application "shall" be listed on that day. That section is clearly intended to impose mandatory obligations.

16. Section 8 provides that service "shall" be deemed duly effected if certain conditions are satisfied. Section 9 provides that service "may" be proved by an affidavit endorsed on the notice. In each case, the distinction between a mandatory requirement imported by "shall" and a discretion conferred by "may" seems to be maintained.

17. It suffices to say that, apart from s4, in all other sections of the ROL Act where "may" is used it is appropriate to regard it as conferring a discretion. By way of contrast, where "shall" is used, a mandatory obligation seems intended. It would be extraordinary if in s4 alone "may" is used so as to import an obligation, not ameliorated by any discretion, to exercise the power conferred.

18. It is also relevant that the power under s4 is conferred upon a Magistrate rather than a public official not independent of the lessor or the owner of the land. It would be expected by the legislature that a Magistrate would exercise a discretion to grant or refuse a warrant only upon relevant grounds after a fair hearing of both sides.

19. However, to my mind, the issue is put beyond doubt by the terms of s26(3) of the Interpretation Act 1967 (ACT) (the Interpretation Act). That subsection provides:

Where an Act provides, by using the word "may", that a person, court

or body may do a particular act or thing, the act or thing may be

done at the discretion of the person, court or body.

20. Section 26(3) was inserted into the Interpretation Act by Ordinance 56 of 1988. This was intended to bring that Act into line with the Acts Interpretation Act 1901 (Cth).

21. The original form of the Interpretation Act applied its terms only to laws made after the commencement of the subsection. It followed the terms of a similar amendment made to the Acts Interpretation Act 1901 (Cth) by the insertion of s33(2A).

22. The explanatory memorandum issued by the Attorney-General, the Hon Lionel Bowen MP, in respect of this amendment stated:

There is a rule of interpretation that "may" means "shall" in some

circumstances. Accordingly, out of caution, it has become customary

to follow the word "may" with the words "at (his) discretion". This

is cumbersome particularly when expressed in non-sexist language.

Parliamentary Counsel never draft "may" as meaning "shall". It is

proposed to define "may" as always importing a discretion. However,

in the interests of caution, proposed new s.33(2A) will only apply

to Acts assented to after the amendment is made.

23. In relation to a similar amendment to the ACT Interpretation Act, s11 of the amending Act which inserted s26(3) was referred to in the explanatory memorandum issued by the then Minister for the Arts and Territories in the following terms:

New subsection (3) makes it clear that the use of the word "may"

creates a discretionary power, thereby overcoming, in respect of

Ordinances that commence after the subsection takes effect, the rule

of interpretation that "may" can mean "shall" in certain

circumstances without the need to employ extra cumbersome language

in each such Ordinance.

24. By Ordinance No. 22, 1989 proclaimed on self-government day, 11 May 1989, the words giving s26(3) only prospective effect were removed. The explanatory memorandum issued by the then Minister stated that the purpose of the amendment was "to omit redundent words".

25. The present form of the provision seems to me to support the view that whether or not s4 of the ROL Act was enacted before or after 11 May 1989, it is to be interpreted as conferring a discretion upon a Magistrate empowered pursuant to its terms to issue an ejectment warrant to grant or refuse a warrant at his or her discretion.

26. A discretion to refrain from making an order for the issue of an ejectment warrant must, of course, be exercised judicially. The range of relevant considerations will be circumscribed by a consideration of the object and purposes underlying the Act in question and any related legislation. That is, in any event, consistent with s11A of the Interpretation Act: see also, Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, 39 per Mason J.

27. It is relevant also to consider the powers and functions of the lessor, the Commissioner for Housing. That office is created by the Housing Assistance Act 1987. That Act empowers the Commissioner to hold land on lease from the Commonwealth and then to enter into tenancy agreements in relation to such land: see s9(1)(a) and (h). Those are the powers relevant for present purposes.

28. The functions of the Commissioner include the carrying into effect of the Housing Agreement with the Commonwealth (Schedule 1) and the delivery of housing assistance to the public, particularly those at financial or other disadvantage. The Commissioner is, in effect, the landlord of last resort for the disadvantaged and provides housing assistance in the public interest, not for private profit.

29. That is not to say, of course, that the Commissioner does not have a legitimate interest in ensuring compliance with the terms of a tenancy agreement. The Commissioner has a duty to protect the public from physical or financial abuse of housing facilities offered and to ensure that tenants do not create a nuisance to neighbours or otherwise expose the Commissioner to legal liability.

30. It follows that hardship to a tenant and leniency in respect of arrangements to remedy past breaches will obviously loom larger as relevant matters than would be the case in respect of a commercial letting.

31. In general terms, the discretion to be exercised by a Magistrate to whom an application for an ejectment warrant is made is analogous to the discretion exercised historically by courts of equity to grant relief against forfeiture of leases. Such discretion has also been enshrined in legislation. The width of that discretion was referred to by Earl Loreburn LC in Hyman v Rose (1912) AC 623, 631:

I desire in the first instance to point out that the discretion

given by the section is very wide. The Court is to consider all the

circumstances and the conduct of the parties.

32. A usual condition of relief is the remedying of all breaches of covenant which are continuing unless they have not "commensurately and irreparably" damaged the lessor.

33. Each of the matters enumerated in Question 2 is relevant to the exercise of the discretion in question. If a lessee was to refuse, without just cause or excuse, to comply with the terms of the lease, or to secure future compliance and remedy, so far as is relevant, all past breaches, it would be unlikely that the discretion would be favourably exercised in respect of such a lessee. That is, again, analogous to the principles upon which a discretion to grant equitable relief to a defaulting lessee would be granted by a court of equity.

34. The nature and extent of the demand for accommodation from relevant persons would also be generally relevant but not so as to deny relief to a person otherwise qualifying for a favourable exercise of discretion. It may make it more or less difficult for alternative accommodation to be found for or by a defaulting lessee.

35. The discretion is to be exercised with regard to the objects and purposes of the Housing Assistance Act 1987 as well as the ROL Act.

THE POSITION OF A LESSEE WHOSE LEASE HAS BEEN LAWFULLY DETERMINED

36. A lessee who holds over following the lawful termination of a lease is in a similar situation to a tenant whose lease is determined pursuant to the ROL Act. Usually that holding over is wrongful. It is described as a tenancy at sufferance.

Tenant at sufferance is he that at first comes in by lawful demise

and after his estate ended continueth in possession and wrongfully

holdeth over. - Co. Litt. 57b

37. In truth, there is no tenancy at all. The so-called tenant has no liability for "rent" but is liable for mesne profits, usually assessed at the rate reserved under the expired lease: see, for example, Swardheath Properties Ltd v Tabet (1979) 1 WLR 285; Canas Property Co Ltd v K L Television Services Ltd (1970) 2 QB 433.

38. However, a tenant holding over as a result of the exercise of discretion by a Magistrate not to issue an ejectment warrant is not wrongfully holding over. He or she is holding over as a result of the exercise of a statutory discretion.

39. A similar situation was considered in Jakucs v Bartlett (1963) NSWR 1468. The landlord had validly determined a lease of residential premises. Exercising a discretion conferred by the Landlord and Tenant (Amendment) Act 1948 (NSW), a Court of Petty Sessions declined to make an order for possession. The Full Court of the Supreme Court found that, there being no new contractual tenancy, the lessee's continued occupation was a personal right not capable of assignment or of sub-letting. That right was referred to as a "statutory tenancy". Nagle J, however, pointed out that the right of occupation so described, is not a tenancy at all. His Honour said, at 1476-1477:

In my opinion a "statutory tenant" in New South Wales has a

statutory right to remain in possession and, while so doing, he is

liable "to pay rent and observe the other obligations of the tenancy

so far as applicable in the meantime". It is for this reason, it

seems, that it has been held that he cannot assign anything, for the

only right the Act gives him is to hold his possession, not to do

away with it. But this protection against dispossession seems to me

to require an examination of the terms upon which such possession is

held.

40. In truth, the "right" referred to is merely a right to avoid dispossession as a result of a refusal, conditionally or otherwise, of a warrant for ejectment. That is descriptive of the "right" of the appellant in the present case if the learned Magistrate should be persuaded to exercise his discretion in her favour.

41. If the lessor desires to reinstate the contractual tenancy it could offer to do so. If the lessee desires to reinstate the tenancy, she may apply for relief from the forfeiture of it: see Hyman v Rose (supra); Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd (1976) WAR 49; Jam Factory Pty Ltd v Sunny Paradise Pty Ltd [1989] VicRp 54; (1989) VR 584.

42. This Court would have jurisdiction to grant such relief in the exercise of its general equitable jurisdiction. The Forfeiture of Leases Act 1901 (NSW), although part of the law of the Territory: see New South Wales Acts Application Act 1984 (ACT), Schedule 2 pt 14, has no application to such leases: see s1(6) thereof.

43. In hearing and determining proceedings under the ROL Act, the Magistrates Court is granted power, pursuant to s6 of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), to grant such relief, equitable or otherwise, as this Court might grant in a case of like nature. The nature of an application for an ejectment warrant is like that of an application in this court for the ejectment of a tenant at sufferance. It seems to me, therefore, that a Magistrate would have the discretion, not only to refuse a warrant, either absolutely or conditionally, but also, if he or she thought fit, to grant relief from the forfeiture of a lease. It might be argued, of course, that, as the lessor is a statutory officer acting on behalf of the Territory, as manager for the Commonwealth of Territory land, such relief is not available.

44. The equitable jurisdiction to grant relief extends to all forms of proposed forfeiture of property. As Howard v Fanshawe (1895) 2 Ch 581 indicates, relief would be granted even where the statutory discretion to grant relief had no application and even if the lessor had re-entered. See also Esanda Finance Corporation Ltd v Plessing and another [1989] HCA 7; (1989) 166 CLR 131, 151 per Brennan J.

45. The equitable jurisdiction did not extend to the grant of relief against forfeiture by or on behalf of the Crown: see, for example, Kickham v R (1882) 8 VLR 1; R v Dale [1906] VicLawRp 103; (1906) 12 ALR 549. That was a consequence of Crown prerogative.

46. In this Territory, however, the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) has, by s29, vested control of land held by the Commonwealth, designated as "Territory Land", in "the Executive", on behalf of the Commonwealth. "Territory Land" is defined by s28 of that Act as land in the Territory which is not "National Land". The land in question here is "Territory Land".

47. Pursuant to s22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) the ACT Legislative Assembly has power to make laws with respect to "Territory Land". The laws over which it has power include the ROL Act and other legislation affecting the liability of the Crown in proceedings.

48. The Commissioner, in granting a lease, does so on behalf of the Crown but is the statutory landlord by virtue of the provisions of the Housing Assistance Act. There is nothing in the ROL Act which would preclude the Crown being bound by its terms. Nor is any other law by virtue of which relief could be granted excluded.

49. So far as the Territory Crown is concerned, it is submitted to the jurisdiction of this Court and the Magistrates Court by virtue of s5 of the Crown Proceedings Act 1992 (ACT). So far as the Commonwealth Crown is concerned, Part IX of the Judiciary Act 1903 (Cth) submits the Commonwealth to the jurisdiction of this Court and of the Magistrates Court insofar as the Commonwealth might be or become a party to any application for relief from forfeiture of a lease such as is involved in the present matter. That view is consistent with the judgment of Kelly J in Jennings Industries Ltd v Commonwealth (1984) 57 ACTR 5: see also Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1.

50. I would, therefore, answer the questions posed in the case stated as follows:

1. Does s.4 of the Recovery of Lands Act 1929 confer a discretion

upon a Magistrate, to be exercised in the circumstances of the

particular case, to issue or refuse to issue a warrant therein

described?

Yes.

2. If a discretion is conferred upon a Magistrate by s.4 of the

Recovery of Lands Act 1929 can the following factors be taken into

account in the exercise of that discretion:

a. Any hardship which would be caused to the lessee or any other

person by the issue of a warrant?

Yes.

b. Whether any reasonably suitable alternative accommodation in lieu

of the subject land is, or has been since the date upon which the

subject lease was determined, available for the occupation of the

lessee?

Yes.

c. Conduct of the lessee, including but not limited to:

i) The breach of any lease covenant?

ii) The breach of undertakings given by the lessee to the

Commissioner for Housing to maintain the payment of rent payable

pursuant to the subject lease and to make payments in reduction of

rental arrears that have arisen under that lease?

iii) Disturbance by the lessee of the amenity of neighbouring

householders and the environs surrounding the leased premises?

iv) Any steps taken by the lessee to remedy any breaches by him or

her of lease covenants?

Yes.

d. Demand for accommodation held by, and under the control of, the

Commissioner for Housing, pursuant to the provisions of the Housing

Assistance Act 1987, by persons eligible to lease such accommodation

from the Commissioner for Housing?

Yes, but that consideration is more relevant to whether it is

practicable for suitable alternative accommodation to be found for

the respondent.

e. The policies stated or inherent in any applicable housing

assistance program prepared by the Commissioner for Housing, and

approved by the Minister, pursuant to s.12 of the Housing Assistance

Act 1987?

Yes.

3. Does a refusal by Magistrate to issue a warrant applied for under

s.4 of the Recovery of Lands Act 1929, in circumstances where the

subject lease has been validly determined pursuant to s.3 of that

Act, create a statutory tenancy and, if so, what is the source and

terms of the statutory tenancy?

51. A "statutory tenancy" is created which is merely a right to resist ejectment. A tenant so holding over will continue to be bound, whether by conditions imposed by a Magistrate or the law applicable to tenants at sufferance, to obey the relevant terms of the expired lease. A Magistrate has jurisdiction to reinstate the lease by granting relief against its forfeiture.