R v Commonwealth Rent Controller [1947] HCA 32

High Court of Australia|1947-07-01|Before: Williams JJ, Dixon J

NATIONAL MUTUAL LIFE ASSOCIATION OF AUSTRALASIA LIMITED.

sepa and tenant - Rent control - Determination of rent - H.C. or A. 'variation by one of several tenants - Power of controller to vary 1947. Ul tenants of his own motion - National Security (Landlord and Tenant) =

(SR. 1945 No. 97-1947 No. 31), regs. 16-18, 21, 23, 30, 31 (2), SyDNEY, ' Aug. 11, 12;

administrative function - The Constitution (83 & 64 Vict. c. 12), LathamoJ,

National Security (Landlord and Tenant) Regulations (S.R. 1945 No, Mich, Starke, ; Williams JJ.

nmonwealth Rent Controller having determined the rentals of 'a large building (being " prescribed premises") one of the tenants "under reg. 31 (2) (a) of the National Security (Landlord and Tenant) 'for a variation of the determination in respect of the premises

that the Controller had no power to vary under reg. 23 of his own ! ae Sebel ee ty lessees other than the neater

PARTE Nationa Muruan Lire ASSOCIATION or AUSTRAL- asia Lrp.

On 25th March 1947 the delegate of the Commonwealth Controller in Queensland upon the application of National Mi Life Association of Australasia Ltd., owner of the National Mutual Building in Queen Street, Brisbane, determined, pursuant to 1 National Security (Landlord and Tenant) Regulations, the fair re accommodation in respect of the National Mutual Building, building being " prescribed premises" within the meaning of Regulations. Part of the premises was occupied by Nati Mutual Life Association of Australasia Ltd., the rest of the pri being let to thirty-nine tenants.

Dorothy May Clifford, the tenant of the basement of the pr

connection with cleaning charges. It was proved that the rent of #1 basement occupied by Dorothy May Clifford had been determi on the basis that the owner of the premises provided for the clea

such cleaning. Notice was given by the delegate to the owner to all other tenants of the premises that an application had made for "a variation of the determination of the above prescribe premises." On the hearing of the application the owner of premises, Dorothy May Clifford, and one other tenant were repr sented. On 29th aay 1947 the delegate revoked the orig

determine the rentals of all alter portions of the premises in ac ance with reg. 23 of the National Security (Landlord and Te Regulations.

Upon the application of the owner of the premises Dixon J. ordet the respondents to show cause before the Full Court of the H Court why a writ of prohibition should not issue to the delegat the Commonwealth Rent Controller Rie him from

valuation of the building was excessive and (b) the rentals had not been correctly apportioned and in treating the fact that an error had been made in connection with the cleaning charges in respect of premises tenanted by the respondent Dorothy May Clifford as warranting in law a re-determination or variation of the fair rents for the entire building ; (3) that upon the application ot the respon- dent Dorothy May Clifford the respondent the Deputy Rent Con- troller had no power under reg. 31 (2) of the said Regulations to determine, re-determine or vary the fair rent of any tenants of the said building except the respondent Dorothy May Clifford the only applicant to him; (4) that the Deputy Rent Controller had no power under reg. 23 of the said Regulations to proceed of his own : motion to re-determine or vary the fair rents payable by the tenants of the said building ; (5) that the Deputy Rent Controller had no power under the said reg. 23 to re-determine or vary the fair rents as aforesaid without complying with sub-reg. (2) of the said reg. 25 and that the said sub-regulation was not complied with.

Kitlo K.C. (with him Hanger), for the prosecutor, The Controller may of his own motion make a determination (reg. 23) but not vary one, and by varying the rents of all tenants on the hearing of an application by one tenant to vary her rental he acted in excess ot his powers. On such an application he can only vary his determination on certain specified grounds (reg. 31 (2)). Here there was no application before the Controller except that of Miss Clifford, no notice of intention to determine any rent other than hers and the notice did not indicate an intention to proceed on the Controller's own motion or on any of the specified grounds. The Controller exceeded his powers in purporting to vary Miss Clifford's rent in 'respect of matter other than cleaning, and to vary the rents of other tenants. "Error and omission" in reg. 31 (2) means error or omission of fact not error as to opinion (Hall v. Harris (1) ). Regu- lation 31 was not intended to provide a substitute for an appeal, which is provided for in the regulations. The regulations (regs. 40-45, 47, 50) show that the Controller or delegate must act in a judicial manner because he is regulating the rights of parties and

prohibition will lie if he exceeds his powers under the regulations.

Bennett K.C. (with him Fahey), for the respondents. Prohibition _ does not lie to the Rent Controller because (1) he exercises a purely a Sotaistative function ; (2) he is functus officio and (3) he did not ae exceed his powers. As to (1) the Controller has no duty to hear. He may determine the fair rent after inquiry. It is only when a (1) (1900) 25 V.L.R. 455, at p. 460.

H. C. oF A. matter goes on appeal that the proceeding becomes judicial (; 1947. & Co. v. United States (1); Silk Bros. Pty. Ltd. v. State Ele

Re rex Commission of Victoria (2); Arnold v. Hunt (3); R. vy. Elech v Commissioners (4); R. v. Connell; Ex parte Hetton Bellbird ( ComMox- Tieries Lad. (5); R. v. Legislative Committee of the Church Assembly

Rent - National Security (Prices) Regulations). To be a duty to act judie CoNTROLLER thore must be a hearing with all the associated features of a hearin eae (Board of Education v. Rice (7); R. v. Housing Appeal Tribunal

Morcvat Local Government Board v. Arlidge (9); Capel vy. Child (10) ; ape Archbishop of Canterbury (11); R. v. Westminster Assessment ' or mittee (12); R. v. Commissioner of Patents; Ex parte Weiss (13 AustiAs Arthur Yates & Co. Pty. Ltd. v. Vegetable Seeds Committee (14)

_y. Macfarlane; Ex parte O' Flanagan (15) ). As the functions o! Controller are purely administrative prohibition does not lie. (2) prohibition does not lie because the Controller is functus (Clifford and O'Sullivan (16); R. v. Hibble; Ex parte Broken Pty. Co. Ltd. (17); R. v. Hickman; Ex parte Fox (18); R. vy. Con Ex parte Hetton Bellbird Collieries Lid. (19); Waterside We Federation of Australia v. Gilchrist, Watt and Sanderson Ld. Estate and Trust Agencies (1927) Ltd. v. Singapore Impro Trust (21). As to (3) reg. 23 gives power to the Controller to dete rents of his own motion and vary them after a determinatio: is not cut down by any other words in the regulations (Se Interpretation Act 1901-1941, s. 33; Parisienne Basket Shoe Lid. v. Whyte (22)). Regulation 31 (2) is only to stop frivo applications.

Kitto K.C. in reply referred to Errington v. Minister of Health ' Our. adv.

Sept. 17 The following written judgments were delivered : - Laruam C.J. and Dixon J. The National Security (Landlo A Tenant) Regulations provide that the Commonwealth Rent Conti

(1) (1928) 276 U.S. 394 [72 Law. Ed. (12) (1941) 1 K.B. 53.

624). (13) (1939) 61 . (2) (1943) 67 C.L.R. 1, at pp. 17, 20. (14) (1945) 72 CLR. 37. (3) (1943) 67 C.L.R. 429, at p. 433. (15) (1923) 32 C.L.R. 518, at

(4) (1924) 1 K.B. 171, at p. 205, (16) (1921) 2 4.0. 570, at p. 5 (5) (1944) 69 C.L.R. 407. (17) (1920) 28 C.L.R. 456. (6) (1928) 1 K.B. 411, at p. 415. (18) (1945) 70 C.L.R. 598. (7) (1911) A.C. 179. (19) (1944) 69 O.L.R. 407. (8) (1920) 3 K-B. 334, at p. 337. (20) (1924) 34 C.L.R. 482, at p.

(10) (1832) 2 C. & J. 558 [149 E.R. (22) (1938) 59 C.L.R. 369. 235). (23) (1935) 1 K.B. 249, at p. 25$

e powers may be exercised by a duly authorized delegate - 4 o ae reg. 11) shall have the power of determining the fair rent of " pre- CE, scribed premises " - -defined in reg. 8 so as to include any part of any py. Kixe premises. The Controller may determine the rent upon an application By by a person interested in the premises as lessor or lessee (reg. 16) giving )""°™" to other persons interested, such as superior lessor or mortgagee é a a _ (reg. 17) and (reg. 23) may determine the rent of his own motion. ae ; Under reg. 30 it is provided that a determination may be varied on Xqriosat. 'application made in the same manner as an application to the Con- sy bags troller for a determination, and that the provisions of Part II. of scoc1erox the Regulations shall, so far as applicable, apply to variations of va 'determinations. Part IT. consists of five divisions. Regulations 16 (A). Tan. _ to 24a constitute Div. 3 of that Part. Regulation 31 (2), which, Breas S. _ with reg. 30, is in Div. 5, provides that "During such period as "Dion." is specified in the determinations, or, if no period is so specified, during the period commencing with the date of the determination and ending twelve months after that date, an application shall not be made to vary the determination, or to determine the fair rent of 'the prescribed premises . . . except on the ground that - (a) _ by an error or omission, an injustice has been occasioned by the determination ;" or upon three other specified grounds. The 4 ipal question which arises upon these proceedings is whether the power which the Controller possesses to determine the rent of ___ preseribed premises of his own motion enables him to vary of his Own motion at any time a rent which has already been the subject of a determination. The National Mutual Life Association of Australasia Ltd. is the owner of a large building in Brisbane, The building is " pre- cribed premises" within the meaning of the regulations. Part of 1¢ building is occupied by the Association itself, and the rest of the building is let to thirty-nine tenants. Miss Dorothy May Clifford is e nt of the basement of the building. On 25th March 1947, an application by the Association, rents in respect of all the

ts were determined. On 15th April 1947 Miss Clifford made in application for a variation of the determination of the rent of of the prescribed premises" on the ground that by an error

ion an injustice had been occasioned by the determination, € particulars of the error or omission were stated as " (a) The

ation of the building is excessive. (6) The rentals are not apportioned, and (c) An error has been made in connection cleaning charges." It was proved that the delegate of the had determined the rent of the basement occupied by upon the basis that the Association provided for the

H. ©. or A. cleaning of those premises, whereas in fact Miss Clifford paid a sum ee stated to be 10s. or £1 a week for the cleaning of those premis 'ue Kine here had therefore been an error of fact which was relevant to fl 0. determination. Caen The delegate gave notice to the Association and to all the other REN tenants that an application had been made for "a variation of the CoNTROLLER: determination of the above prescribed premises." The premises were referred to as " National Mutual Life Association Building. In fact Miss Clifford had not applied for a variation of the determin:

spect of the whole of the premises. Indeed, she was ni

Lire Association or in a position to make such an application. Regulation 16 is tl

Avstéat regulation which gives a right to apply for a determination, and ay: provides that certain lessees of prescribed premises may apply Latham C.J.

Dixon J. writing ip the Controller to have the fair rent of the * "prescribed premises" determined by the Controller. Accordingly, a lessee of premises can make an application only in respect of premises of which - that person is the lessee. The delegate, however, conducted hearing of the application at which the Association, Miss Clifford and another tenant were represented. He expressed the opi that he was entitled under reg. 23 to vary the rent of his own motion, - and in fact made a determination varying the rent of all the tenants It is contended for the Association that the delegate had no pow upon Miss Clifford's application to deal with the rent of premises other than those let to Miss Clifford. The Association has obt: an order nisi for prohibition directed to the delegate and the tenants The application is based upon s. 75 (v.) of the Constitution, whic provides that the High Court shall have original jurisdiction in matters in which a writ of prohibition is sought against an officer the Commonwealth. The applicant contends that the delegate an officer of the Commonwealth exercising powers which should exercised in a judicial manner and is therefore subject to prohibiti and that in the circumstances which existed he had no power to any of the rents except that of Miss Clifford.

It is not contended for the delegate that he is not an office at Commonwealth.

Regulation 16 provides that the lessor or certain lessees may ay in writing to the Controller to have the fair rent determined by th Controller. Regulation 17 provides that at least seven days prior to determining the fair rent of prescribed premises (other - "shared accommodation") the Controller shall give notice of h intention to determine the fair rent to the lessor and lessee, to lessees, and in certain cases to other persons interested i particular premises in question. Regulation 18 provides that wl

of preseribed premises "the Controller may, after making such and obtaining such reports (if any) as he considers necessary, after considering any representations made by any person whose ts may be affected by the determination, determine the fair rent the prescribed premises." 'Regulation 23 provides that : - (1) The Controller may, of his own motion, after inquiry, determine fair rent of any prescribed premises other than shared accom- ion. (2) The Controller shall give to the lessor and lessee of prescribed premises and to the other persons referred to in reg. of these Regulations notice of his intention to determine the fair of the premises, and the notice so given to the lessor shall, for purposes of this Division, be deemed to be an application. In determining the fair rent of prescribed premises under this ation, the Controller shall have the same powers as he has in inexion with an application, and any determination made by the oller shall have the same effect for all purposes as a determina- made upon an application." is established that when a person has legal authority to determine affecting the rights of subjects and, having the duty to judicially, acts in excess of his legal authority, he is subject to

controlling jurisdiction exercised in the writ of prohibition : Electricity Commissioners (1). The question is whether this ciple applies in the case of the Rent Controller. He is a person has legal authority to determine what rent shall be paid by ons who are already in the relationship of landlord and tenant | therefore to affect the rights of such persons. The question in te is whether he is required to act judicially in the exercise of ions, or whether he is merely an administrative officer who | such representations from interested parties as he thinks and then decides a matter without being required to act in manner, t opinion the Regulations show that the Rent Controller is to exercise his functions in a judicial manner. He may n an application (regs. 16, 17 and 18) or of his own motion 23). He also has power under reg. 30, upon an application e, to vary a determination, and if he acts under this power ons of Part II. of the Regulations relating to determina- as applicable, apply to the variation. re are many provisions relating to applications which are ible to applications for determinations and therefore to appli- 8 for variations of determinations. Regulation 17 requires A (2) (1924) 1 K.B. 171, at p. 205.

application has been made for the determination of the fair rent H- ©. oF Av

H.C. oF A. notice to be given to interested parties. Regulation 18 requires 1947. Controller to make such inquiries and obtain such reports, if a

Se J : * , 'Tun Kixq 28 he considers necessary, and to consider representations made b

v. any person whose rights may be affected. Regulation 40 en:

ouon him to summon witnesses and administer oaths. Regulation '

Renr makes it an offence for a person served with a summons to refuse aes "F*5 fail to attend before him. Regulation 42 makes it an offence fo Nations person to refuse to be sworn or to give evidence. Regulation

Mvrvat provides that a witness shall not intentionally give false testimony

Lire 5 i f Pie: Association before the Controller. Regulation 44 gives protection to witn oF and exposes them to liabilities in the same manner as in cases

eee in the Supreme Court of a State or Territory. Regulation 45 pro'

reports and proceedings before the Controller. Regulation 47 the Controller in the exercise of his functions the same prote and immunity asa justice of the High Court. Regulation 50 pro that any person who is a party to proceedings under the rele part of the regulations or who may be affected by the result of such proceedings, may be represented by an agent, who may exam witnesses and address the Board or Controller on that perso: behalf.

The result of these provisions is that the Controller is bound | give notice of his intention to determine or vary any tent, that he bound to hear the parties or their agents, and that the parties : entitled to adduce evidence, examine witnesses and address th Controller. When to these characteristics of the proceedings befor the Controller there is added the protection given to the Contre and to witnesses in the same manner as in the case of judicial ceedings, it must in our opinion be concluded that, though Controller is not a court or a judge, he is under a duty to act jee manner. Accordingly, in our opinion the objection t

is required to exercise his powers in a judicial mamner fails.

The prosecutor, however, is met by ' further objection. lation 38 is in the following terms : - " Every determination Fair Rents Board or of the Controller shall, except as provided ny this Part, be final and without appeal, and no writ of prohibition certiorari shall lie in respect thereof."

An appeal is provided from a decision of the Controller to Rents Board. The respondent did not rely upon this provision excluding in the present case the jurisdiction of the High Co under s. 75 (v.). No such provision can exclude the jurisdiction this Court : see cases cited in Australian Coal and Shale Emplo;

nv. Aberfield Coal Mining Co. Tad. (1). When Common- #- ©: 9 A.

legislation confers powers upon an officer a provision such yes

s reg. 38 cannot be construed as intended to provide that his typ Kixe

are absolutely unlimited. Such a construction would raise ia

uestions of the validity of the legislation. Such a provision cannot een,

to give effect to any legislation which it is beyond the power of | Rent

Commonwealth Parliament to enact. Further, even where no COSTOUUERi

tion of validity arises, the effect of such a provision in a particular [pees

depends upon the construction of the relevant statute taken as Motwav

le. If a legislature gives certain powers and certain powers [Bape

; to an authority which it creates, a provision taking away or

ition cannot reasonably be construed to mean that the authority AVS™RAL

intended to have unlimited powers in respect of all persons, and 9 spect of all subject matters, and without observance of any Won oe

ns which the legislature has attached to the exercise of the

Such a provision will operate to prevent prohibition going

cases 0 of procedural deficiencies where the authority whose powers

; question is in substance dealing with the matter in respect

ch power is conferted upon it. But if, upon the construction

legislation as a whole, it appears that the powers conferred

the authority are exercisable in certain cases, and definitely

y are not exercisable in other cases, and that any attempt to

'them was intended to be ineffective, then a provision taking

hibition will not exclude the jurisdiction of this Court under

of the Constitution in a case of the latter description : see

lickman; Ex parte Fox (2). It is therefore necessary to inquire

the regulations now under consideration impose any con-

It is claimed that the Acts Act 1901-1941, ss. 33 and 46, applies to this provision power to determine rents can be exercised from time to be, Bu , however this might otherwise be, in this case a contrary

on appears, because there are special provisions contained in 31 (2) which apply to applications to vary a determination e the fair rent after a determination has been made. 31 (2) applies during such period as is specified in the i or if no period is so specified, for a period of twelve s after the determination. The provision is that an appli-

SZ Tun Kixe . Comaron- WEALTH Rent CONTROLLER ;

EX PARTE Nationan Morvan Lire ASSOCIATION or AUSTRAL- asta Lrp.

For reasons already stated, Miss Clifford could make an applicati for variation only in respect of premises leased by her; see regs, and 30. The fact that she made an application for variation ha no bearing upon the power of the delegate to vary or determine rents of other tenants. Therefore the question is whether reg. enables the Controller to vary those rents of his own motion. Regulation 30 is a special provision expressly giving power to Controller to vary determinations. The power can be exercis only " on application made in the same manner as an application the Controller for a determination." It has been shown that application can be made to the Controller for a determination by a person interested in the particular premises in respect of which a determination is sought. Such an application must be in writi addressed to the Controller (reg. 16). No manner of making application is provided in any other cases. So also an applicatio for a variation can be made only by such a person and in that manner. No application is made to the Controller by any person when acts of his own motion. The very meaning of acting " of his motion" is that he acts without any application - though whe does so act, he must give notice and otherwise proceed as in the of an application (reg. (2)). Thus, as a variation can be mai only upon an application to the Controller, and as a decision of Controller to act of his own motion cannot be regarded as an ap] cation to the Controller, the Controller has no power to vary determination of his own motion. bs This conclusion is supported by a consideration of reg. 31

to determinations so that parties shall know what their position

be either for twelve months or during the period specified i determination, subject only to the risk of variation being made u an application by a person qualified to make the application, upon limited grounds. If the Controller is at liberty to vary at any time of his own motion under reg. 23 there is no stabilit any determination. Whenever the Controller thought prop could vary a determination, and reg. 31 (2) would have no effect all. He could act without any application by anybody or request or suggestion from any person, whether a tenant © and whether or not any of the grounds for variation set out in re 31 (2) in fact existed. It is possible to give effect to reg. 31 (2) ¢ by holding that an application to vary within the period men in the regulation can be made only by a person who is inter

vis en. under the regulations to make an application to the ee

there was no application to vary before the delegate, ag had no power to vary the rents of premises other than those - Rent ConTROLLER ;

occupied by Miss Clifford. es cee Bes An 'objection to the foregoing reasoning was based upon reg. 21, Nariosan, lich is in the following terms : - " Where any fair rent has been aes mined by the Controller it shall, as from the date fixed under acceso last preceding regulation and until varied in pursuance of this | oF vision, be the rent of the premises, or of the premises together Seyi ith goods leased therewith, in respect of which it is fixed." ee 'Tt was pointed out that this provision assumed that rents could be "Dixon J.

d in pursuance of " this division," that is, Div. 3 of Part II. fact Div. 3 of Part II. contains no provision for variation ss \deed, Teg. 23, referring to variation by the Controller of 'own 'motion, confers authority to vary rents. It was argued

fore that reg, 23 should be construed as implying such an

of Div 3. But in nace sta Pia ialeaig as to variation, are express and very specific, namely regs. 30 and 31, are ed in Div. 5. There is no provision in Div. 3, other than t already mentioned in reg. 21, which contains any express 2 to Variation. The strict result is that there simply is no in Div. 3 in pursuance of which rent can be varied, and ly 'the reference to variation contained in reg. 21 can "operation. An alternative view, which is possibly well- is that the word " Division " in reg. 21 is a mere slip for " but it i is preferable, we think, to put the construction of tion upon the other ground mentioned, namely that, regulations as a whole, the provisions for variation are in | there are no provisions for variation in Diy. 3. sult therefore is, in our opinion, that the Controller cannot vary of his own motion rents that have been determined, | a determination has expired he can, either upon D et his own motion, make a new determination ; that such rents only upon an application made by a person 0 make an application under the Regulations, and then the application is made upon the grounds mentioned in When an application is made upon such a ground he e ground alleged, but his authority is, in our opinion,

Ex PARTE NariowaL Morvan Lire ASSOCIATION oF AUSTRAL- asia Lrp.

a ground mentioned in the regulation does not throw open thi determination. The provisions of reg. 31 (2) are designed to to apply to the Controller to make corrections

Controller shonid have reached a ait conclusion upon | before him. If the words were construed in the latter sense, would give to any dissatisfied person a right to apply for a variati at any time and the Controller would then be sitting as a tribunal of appeal from himself. Such a construction would make non of the provisions in reg. 31 (2) limiting (within the period mentio1 applications for variations to applications upon four specified groun If these principles are applied in the present case the result is the Controller can properly vary the rent to make allowance for t mistake as to the costs of cleaning Miss Clifford's premises, but tl he is not at liberty to review his decisions as to the valuation of t building or the apportionment of rentals. Accordingly, upon application of Miss Clifford there was authority to vary the de mination of the rent which she paid in respect of the premises le by her so far as, in the opinion of the delegate, the mistake as t cost of cleaning justified a variation, but her application did authorize the Controller to vary the rents of premises leased b tenants or to vary her rent as a result of the reconsideration matters other than cleaning costs. |

Accordingly, in our opinion the order nisi should be made abso

Ricn J, This is an application to make absolute a wal prohibition against the delegate of the Commonwealth Rent ce troller and tenants of a certain building situate in Brisbane 0} and in part occupied by the National Mutual Life Association. application is made pursuant to s. 75 (v.) of the Constitution 1 confers jurisdiction on this Court in all matters in which a prohibition i is sought against an officer of the Commonwealth. - t is not disputed that the Controller is such an officer. The sub question for our determination is whether the Controller power of his own motion and at any time to determine a rent has already been determined. Briefly stated, the relevant fa that the rents of the " preseribed premises" of all the including Miss Clifford had been determined. At a later Clifford applied for a variation of the rent of part of the

okay that " by an error or omission, an injustice 4- ©. oF A 1 ioned by the determination": National Security be i dlord and Tenant) Regulations, reg. 31 (2) (a). There had been tay Kise or omission in the case of Miss Clifford's rent because that the Controller had determined it on the footing that Page he landlord was Tae fe for thé cleaning charges whereas she had paid | Rewt requisite amount. Regulation 16 enables a lessee who has cede cou fi certain conditions as to payment of rent to * " apply in writing de ; Bitte Controller to have the fair rent of the premises determined." | Mpruat his application i is limited to the premises occupied by Assocrurtos does not extend to all the premises. The notice eae: to the Association and to all the other tenants by the ge. 9 that an application had been made under reg. 31 madres variation of the determination of the aboye deogbed e "_Niz,, the Association Building. The delegate then ae hear 'the application i 'in the presence of representatives Association, Miss (! and enother tenant. The delegate : he "hi isdictio conferred by reg. 23 to entertain the % n" arid he exercised it by redetermining all the rentals of d_premises. In so doing he acting m pa in an ative capacity or was it his duty to act ju feialy 2 ? The empower him to determine ii rights and tae and therefore he is 'bound to act judicially, =~ th detailing the regulations which impose this duty I refer to roo 16-18, 28, 30, 40-45, 47 and 50. The difference between judicial a le power in the exercise of which there is a duty to act | ws been discussed in a number of cases amongst others, v. Minister of Health (1); &. Robins & Son Ltd. v. Minister 3 } (2); Rola Company (Aust.) Pty. Ltd. v. The Common- The further objection to the application based on reg. : ment of the Chief Justice and Dizon agreement with it I refrain from then remains to consider whether hall s authority'to vary a determination &

s ting to variations 'of determinations which yplicat by an inte: person before a variation aa within the periods referred to in reg. 31 (2). As to this dee. swith the a pea a in the sear judgment | eee

EX PARTE NavionaL Murua Lire ASS OCIATION or AUSTRAL- asta Lrp.

Srarke J. Rule nisi for writ of prohibition founded upon s. of the C eae a calling es the Neem Rent Cont

ef 29th May 1947 of the fair ay of certain premises in Bri known as ges National Mutual Bones

ae Ltd, deerme oie te to the National S (Landlord and Tenant) Regulations, the fair rent of accommo in respect of the National Mutual Building in Brisbane. In April 1947, one of the tenants, Dorothy May Clifford, ca on business under the style of Spurgins Ladies Hairdressing, m application to the Deputy Rent Controller for a variation of determination in respect of "the part of the prescribed pr known as thé National Mutual Building which she occupied pursi to the regulations already mentioned on the ground that by error or omission an injustice had been occasioned by the ds mi tion. Notice of her application for a variation was given to the Natio Mutual Life Association of Australasia Ltd. and all the tenan the building, including the applicant, and that the application set down for hearing. The Deputy Rent Controller, to whom th Commonwealth Rent Controller had delegated his powers under regulations, already mentioned, proceeded to hear the appli and determined the fair rent not only of the premises occupier Dorothy May Clifford in the National Mutual Building but of al tenants in the building. y The application to vary was made pursuant to regs. 30 and 31, determination may be varied, on application made in 'the manner as an application to the Controller for a determination, the provisions relating to determinations apply so far as app! to variations of determinations. But during the period men in the regulations an application shall not be made to vary determination or to determine the fair rent of the premises e the ground, inter alia, that by an error or omission an injus been occasioned by the determination.

to have the fair rent of prescribed premises determined b Controller. The Controller is required to give notice of his int to determine the fair rent of the premises to the lessor and les

rae, t so determined by the Controller shall, until varied, be the rent Tye Kise

premises (reg. 21). ie Deputy Rent Controller, in determining the fair rent of all tenants of the building and not merely the fair rent of the s occupied by Dorothy May Clifford, purported to act upon = Pe, ions of reg. 23. The Controller, that regulation provides, Nariowat

of his own motion after inquiry determine the fair rent of any ry ng ¢ premises, He is required to give the lessor and lessee of sociation premises and to certain other persons notice of his intention to aa Bo mine the fair rent of the premises and the notice so given to Asi, Lrp. lessor is for the purpose of the regulations deemed to be an | ication, But this provision was.no warrant for proceeding Or enon a new determination of the fair rent of the whole of the premises.

A . determination had already been made and was in existence and : , the Deputy ControJler did not give notice of his intention mine the fair rent of the premises, but only of an application reg, 31 for a variation of the determination of the fair rent of

"above prescribed premises", the National Mutual Building, e, which he notified he had set down for hearing on 23rd 1947, when those notified were invited to attend for the purpose making any representations bearing on the application. le gee for a variation LY. tatty May Clifford was the

1 by an error or omission an injustice had Mest: sonata by the. 'determination. Doubtless the error or omission must be

n etroneously stated in connection with the original deter- Accordingly, the Deputy Rent Controller had authority original determination i in respect of the premises occupied y May Clifford but not to vary it with respect to the occupied by the other tenants. it is objected that the Commonwealth Rent Controller, his y and delegate were exercising administrative functions in of which prohibition does not lie. " But the operation of has extended to control the proceedings of bodies which | to be, and would not be recognized as, Courts of Justice. any body of persons having legal authority to determine - affecting the rights of subjects, and having the duty to y> act in excess of their legal authority they are subject g jurisdiction of the King's Bench Division exercised

H. C. or A. in these writs" (R. v. Llectricity Commissioners (1) ). The Commo a wealth Rent Controller, his deputy and delegate have legal auth Tur Kixe . Within the meaning of this principle to determine questions affe #

the rights of subjects, namely, to determine the fair rents which shi

be paid by them in respect of prescribed premises and to act ju Reyt in so doing. CONTROLLER A nother objection was based upon reg. 38 : - "* Every dete Nitiosi, of a Fair Rents Board or of the Controller shall, except as Mutvar . . . be final and without appeal, and no writ of prohibiti era iorari shall lie in respect thereof." This provision doe;

or however, affect the jurisdiction of this Court to grant prohibit

Spee under s. 75 (v.) of the Constitution (Australian Coal and Sha et Employees Federation v. Aberfield Coal Mining Co. Ltd. (2)). Starke J.

the regulation is important. for the purpose of ascertaining authority confided to the Rent Controller. It is plain that it not enable him to transcend the Constitution. Nor does it co jurisdiction upon him, subject to the appeal given by the regulat authority finally to determine whether the conditions require it for the exercise of his jurisdiction have or have not been fi

All reg. 38 does is to take away prohibition, and that canno done so far as the jurisdiction conferred upon this Court to g prohibition pursuant to s. 75 (v.) of the Constitution.

The relation between the constitutional power and _priva clauses such as reg. 38 does not yet appear to be clearly se see Waterside Workers' peeie: of Australia v. Gilchrist, Wal Sanderson Ltd. (3); R. v. Hickman; Ex parte Fox (4); tralian Coal and Shale Site Federation v. Aberfiad Coal Co. Ltd. (5).

It is not important in this case to determine whether the mat that fall for decision under reg. 31 are within the jurisdiction of Rent Controller. On the whole I should think they are, fo: relate to the form of the applicant's proceedings and the proof is required in those proceedings.

in respect of the premises occupied by Dorothy May Clifford. determination in her favour was based upon an application t in accordance with the regulations and the various determin: though based on the same evidence, are separate and distil

(1) (1924) 1 K.B. 171, at p. 205. (4) (1945) 70 C.L.R. 598, at pp.

(3) (1924) 34 C.L.R. 482, at pp. 520, (5) (1942) 66 C.L.R. 161, at pp. 521. 182. 186.

5 agree substantially with the reasons for judgment H- ©. oF A- i tice and Dizon J. 1 agree with them that the order al be made absolute. 'Tue Kixo

for the prosecutor, Crouch & Patterson, Brisbane, by ¢.svorten aorid MacGregor & Palmer. ee pint puecceronsente, H. F. E. Whitlam, ese Solicitor Narioyar.

At a glance

Court

Decision date

Before

Source

Judgment (127 paragraphs)