McNamara v Consumer Trader and Tenancy Tribunal & anor

LOWER COURT Consumer Trader & Tenancy Tribunal JURISDICTION : LOWER COURT 00/47292 FILE NUMBER(S) : LOWER COURT D. Sheehan (Member) JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIAVE LAW LIST

Jill McNamara v Consumer Trader and Tenancy Tribunal and anor

JUDGMENT 1 HIS HONOUR: This is an appeal by the plaintiff against the decision of the Consumer Trader and Tenancy Tribunal that it had jurisdiction in proceedings brought against her by the second defendant, the Roads and Traffic Authority (RTA) pursuant to the provisions of the Residential Tenancies Act 1987 (RT Act). 2 The material facts may be summarised as follows: The Commissioner for Main Roads is the registered proprietor of the property described as lot 3 in Deposited Plan 165353 being the whole of the land in Certificate of Title Volume 3013 Folio 111 and situated at 67 Cromwell Street, Croydon Park (the premises). 3 The plaintiff is tenant of the premises and resides therein. She has resided there continually since 1981, firstly with her husband, Dennis McNamara, and after his death by herself. Rent has been paid throughout, firstly to the Commissioner for Main Roads and then to the RTA. 4 The initial tenancy agreement was between the plaintiff's husband and the Commissioner for Main Roads and dated 9 November 1981. The plaintiff resided with her husband in the premises immediately before his death on 24 March 1985, and was in actual possession of the premises immediately after his death. She signed a further fixed term tenancy agreement with the Commissioner for Main Roads on 31 March 1986. 5 The premises comprise a brick and tile bungalow constructed in the 1920's. There has been no lease on the premises registered under s 5A of the Landlord and Tenant (Amendment) Act 1948 (the LTA Act). There has been no Fair Rents Determination made in relation to the premises. 6 On 5 October 2000, the RTA served a 60-day determination notice on the claimant in respect of the premises, and on 20 December 2000, it made application to the Consumer Trader and Tenancy Tribunal (the Tribunal) for an order for vacant possession of the premises. 7 The plaintiff claims that Parts 1, 2, 3, 4 and 5 of the LTA Act apply and so by reason of s 6(2)(a) of the RT Act, that latter Act does not apply and the Tribunal does not have jurisdiction. Moreover, the termination notice served on 5 October 2000 does not comply with s 62 of the LTA Act and would not be effective to terminate the tenancy under that Act although it may well be valid if the RT Act applies. 8 The RTA on the other hand claims that the operation of the LTA Act is excluded by s 5 of that Act and accordingly that the RT Act applies and the Tribunal has jurisdiction in the matter: RT Act, ss 3(1), 83. This claim was successful in the Tribunal. 9 Section 5 of the LTA Act is in the following terms: 5. Crown Not Bound This Act shall not bind: (a) the Crown in right of the Commonwealth or of the State; or (b) the Housing Commission of New South Wales. 10 The section was considered by the High Court in Wynyard Investments Pty Limited v Commissioner for Railways (NSW) (1955) 93 CLR 376 where it was held by majority that the Commissioner was entitled the immunity of the Crown referred in the section and was not bound by the LTA Act in respect of land leased by it. 11 The majority (Williams, Webb and Taylor JJ) held at 385 that the terms of s 4(2) of the Transport (Division of Functions) Act 1932 were "decisive for present purposes". That section provided that for the purposes of any Act the Commissioner "shall be deemed to be a statutory body representing the Crown". 12 The majority rejected the appellant's argument (the same argument made by the plaintiff here) that s 4(2) was intended to have a referential and definitive operation only, so that after the words "for the purposes of any Act" there should be implied the words "where the expression statutory body representing the Crown" occurs in that Act. 13 The RTA is constituted by s 46 of the Transport Administration Act 1988 (the TA Act). Under s 46(2)(b) the RTA "… is, for the purposes of any Act, a statutory body representing the crown". Its Chief Executive who is appointed by the Governor is responsible for managing its affairs and is subject to the control and direction of the Minister (ss 47, 48 and 49). 14 By the operation of clause 24 of Schedule 7 to the TA Act, all real property vested in the Commissioner for Main Roads was vested in the RTA. 15 There is a difference in the provisions relating to the RTA and the Commissioner for Railways in that, whereas the RTA "is, for the purposes of any Act, a statutory body representing the Crown", the Commissioner was "for the purposes of any Act, deemed to be a statutory body representing the Crown" (my underlining); but it was agreed that this makes no difference, although it certainly could not place the RTA in any weaker position in relation to Crown immunity than was the Commissioner for Railways. 16 The decision in Wynyard Investments on the same section as that now under consideration has not been overruled and is binding on me. Furthermore, the Commissioner for Main Roads, the predecessor of the RTA, was held entitled to the Crown immunity expressed in s 5 of the LTA Act in Saunders v Capelin [1967] 1 NSWR 567 at 574. 17 Reference was made to the express provision in s 5(b) to the Housing Commission of New South Wales and it was submitted that such provision indicated a legislative intention that statutory bodies were only to obtain the immunity if they were expressly nominated, but this argument was rejected by Brereton J in Electricity Commission of New South Wales v Australian United Press Ltd (1954) 55 SR (NSW) 118 at 129. His Honour considered that the legislature was merely piling precaution upon precaution and in effect declaring that whether the Housing Commission was a servant of the Crown or not, it was not bound by that Act. 18 The Housing Act 1941 which constituted the Commission (s 5) did not contain any provision to the effect that it should be, or be deemed to be, a statutory body representing the Crown, although s 32 provided that in the exercise of its powers and functions, it should be subject to the control and direction of the Minister, and in North Sydney Municipal Council v Housing Commission of NSW (1948) 48 SR (NSW) 281 at 284 Jordan CJ had held that the Commission was a statutory body representing the Crown. 19 I was referred to a number of other cases where it was held that statutory bodies said to be, or deemed to be, representing the Crown have been denied Crown immunity, but they are all distinguishable. 20 Galibal Pty Limited v Chief Commissioner for Land Tax (1994) 96 ATC 4,143 and Chief Commissioner for State Revenue v Darling Harbour Authority (2001) 47 ATR 171, were both cases involving the construction of the Land Tax Management Act 1956, ss 3, 21C and the Darling Harbour Authority Act 1984 s 6 and in effect held that under that legislation land could not be "owned" by the Crown and at the same time "owned" by a statutory body representing the Crown. What is important for present purposes is that both judgments refer to, and the latter judgment expressly applies, the judgment of the majority in Wynyard Investments. 21 In State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 the Board was deemed to be a statutory body representing the Crown for the purposes of any Act, but having regard to s 13(2) of the Interpretation Act 1987 (NSW) this was for the purposes of any New South Wales act, and it did not confer immunity in respect of obligations under a Western Australian statute. That case is of no assistance in resolving the present issue. 22 Finally it was submitted that the common law principles relating to the applicability of Crown immunity to statutory government instrumentalities has been considerably modified in recent years, and reference was made in particular to Bropho v Western Australia (1990) 171 CLR 1 and Townsville Hospitals Board v Council of the City of Townsville (1982) 149 CLR 282. Both of those cases depended on the common law tests as there were no express provisions assimilating the bodies concerned to the Crown as there is here. This case does not depend on common law principles but on the express words of the statute as construed and applied by the majority in Wynyard Investments. That majority judgment has never been overruled or even questioned, and is decisive in the present case. 23 For these reasons the judgment of the Tribunal is affirmed, the Summons dismissed with costs and the proceedings remitted to the Tribunal for further hearing. **********

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