The Commonwealth v Rhind

The Commonwealth v Rhind - [1966] HCA 83 - HCA 1966 case summary — Zoe

On 15th February 1965 the defendant was tenant to the Commonwealth of Australia and the occupant of a dwelling house at Woolwich, Sydney, under a weekly tenancy in respect of which the weekly rental did not exceed £12 12s. 0d. per week or an equivalent sum calculated in respect of any other period. On that day a notice directed to the defendant to quit and deliver up possession of the premises was signed "for and on behalf of the Commonwealth of Australia" by the Chief Property Officer for New South Wales of the Department of the Interior. The Minister for the Interior by a writing signed on 19th November 1959 had authorized that Chief Property Officer to sign for and on behalf of the Commonwealth of Australia all notices to quit which might be addressed to tenants of premises owned by the Commonwealth in the State of New South Wales, the service of which should have been previously authorized by the Minister. Presumably the Minister prior to 15th February 1965 had authorized the service upon the defendant of a notice to quit. The notice was duly served, but the defendant failed to deliver up possession of the premises within the time specified. Thereupon the Commonwealth of Australia as claimant commenced an action of ejectment by writ of summons against the defendant in the Supreme Court of New South Wales. The defendant entered an appearance and filed particulars of defence. By these he raised a defence that the weekly tenancy had not been determined (this defence being an attack upon the efficacy of the notice to quit) and an alternative defence that the tenancy which had been determined was a tenancy of a dwelling house actually occupied by the defendant in respect of which the rent did not exceed £12 12s. 0d. per week or its equivalent calculated in respect of any other period (this being a reference to s. 2A of the Landlord and Tenant Act, 1899-1965 NSW); and that therefore the Supreme Court was not "a court of competent jurisdiction to hear and determine the claim". The action was tried on 21st September 1965 when the primary judge gave a verdict for the defendant, and directed that judgment be entered accordingly. The grounds upon which the primary judge took this course were, first, that the notice to quit was ineffective because having regard to the provisions of s. 60 of the Lands Acquisition Act 1955-1957 Cth it could have been validly signed in the circumstances only by the Attorney-General; and, secondly, because by reason of s. 2A of the Landlord and Tenant Act (the Act) the Supreme Court had no jurisdiction to entertain an action of ejectment where the terms of that section were satisfied.

[19]

An appeal to the Supreme Court from an inferior court is clearly itself a cause pending in the Supreme Court within the meaning of ss. 40 and 40A of the Judiciary Act, I respectfully agree with what Isaacs J. (with whom Starke J. agreed) said in George Hudson Ltd. v. Australian Timber Workers' Union [2] . But here the "appeal" is to the Supreme Court from a verdict and a direction to enter judgment to which, in the circumstances, no effect could be given as Isaacs J. pointed out in the abovementioned case that an appeal to the Supreme Court from an order of the Supreme Court at first instance may be regarded as being in the appellate and not in the original jurisdiction of the Supreme Court. He was not referring however to circumstances such as the present but rather, I should think, to the position which would arise in the case of a judgment in an action in a Supreme Court where the judge at first instance sat throughout as the Court itself in contradistinction to the position at common law. There, the Court had to be moved for judgment after verdict, a course rendered unnecessary by statutory provisions for signing judgment after verdict, etc. but which is reflected in the structure of s. 5 of the Supreme Court Procedure Act: see Common Law Procedure Act, s. 133 and s. 5 (6) of the Supreme Court Procedure Act. In any case, the purpose for which Isaacs J. differentiated original and appellate jurisdiction in a Supreme Court was to found the proposition that an appeal to a Supreme Court from an inferior Court was a cause pending in a Supreme Court. I do not understand him to be asserting that where there was no judgment of the Supreme Court therein the action in which the appeal was pending had itself ceased to be a cause pending in the Supreme Court. Indeed, having regard to what his Honour said at p. 428 of the report of George Hudson Ltd. v. Australian Timber Workers' Union [3] , it may be said that, even where there was a judgment of a Supreme Court resolving the issues in the action, the cause continued to be pending during the course of the appeal to the Supreme Court from that judgment. But there is no need for me to pursue that point here for I am dealing with a case where as I have said there is no judgment of the Supreme Court in the action. There is only a direction of the Court to enter judgment which is virtually vacated by the lodging of the appeal to the Court in Banco - and now to the Court of Appeal. In such a case, I am unable to hold that the action itself was not still pending before the Supreme Court in Banco or the Court of Appeal at the time the Court of Appeal entered upon the hearing of the "appeal": see s. 5 (13). What was on foot was a rehearing of the action.

[49]

It therefore appears to me that there should be a verdict for the defendants as the Court has no jurisdiction to entertain the actions and there will be judgment accordingly. The Court's lack of jurisdiction his Honour attributed to s. 2A, treating it as a section applying to the plaintiff and denying the plaintiff the right to sue. The plaintiff, in his Honour's view, was not the Commonwealth of Australia established by the Commonwealth of Australia Constitution Act but the corporation named in s. 61 of the Lands Acquisition Act. His Honour said: Assuming that the corporation, designated "Commonwealth of Australia", is a statutory body representing the Crown, I find myself unable to distinguish the present case from Housing Commission of N.S.W. v. Panayides [1] . Nothing whatever was shown to turn on the fact that it is here the Crown in right of the Commonwealth and not the Crown in right of the State which is the claimant. What actually happened in the Supreme Court to carry out his Honour's decision does not appear from the transcript record of proceedings but it is not, I think, to be assumed that the procedure laid down by the Supreme Court Procedure Act was not followed. This provides for the entry of judgment (s. 5, sub-ss. (2) and (3)) and gives an appeal against "any judgment directed by the judge to be entered". The unsuccessful defendant (i.e., the Commonwealth of Australia) instituted an appeal pursuant to s. 5, sub-s. (6), and this appeal came on for hearing in the Court of Appeal Division pursuant to s. 5, sub-s. (7). Had that appeal followed its normal course, the Court of Appeal could have given any judgment or made any order which ought to have been given or made in the first instance (s. 5, sub-s. (9)), that is, if it were of the opinion that the learned trial judge was wrong, it could have directed that judgment for the plaintiff should be entered in the action. However, upon the hearing of the appeal the Solicitor-General for the Commonwealth, in response to the respondent's submission that s. 2A was a complete answer to the Commonwealth's action, impugned the validity of that section, contending that the State had no power to deny to the Commonwealth resort to a State court invested with federal jurisdiction pursuant to the Commonwealth Constitution (s. 77 (iii.)). We have not before us a record of the submissions actually made by counsel for the appellant and respondent, but the Court of Appeal did decide that an inter se question had been raised effecting an automatic transfer of the appeal to this Court pursuant to the Judiciary Act, s. 40A. That decision I accept, for I would regard a challenge by the Commonwealth to the validity of a State law on the ground that it attempts to forbid the Commonwealth from exercising any power derived from the Constitution itself or belonging to it by virtue of its establishment under the Commonwealth of Australia Constitution Act, as clearly raising an inter se question. See Pirrie v. McFarlane [1] ; and Ex parte Nelson [No. 2] [2] . Furthermore, a submission that a State Act is invalid because it relates to a matter exclusively within Commonwealth legislative power would raise an inter se question: Dennis Hotels Pty. Ltd. v. Victoria [3] . 1. (1963) 63 S.R. (N.S.W.) 1; 80 W.N. 312. 2. (1925) 36 C.L.R. 170. 3. (1929) 42 C.L.R. 258, at pp. 270-272. 4. (1961) 104 C.L.R. 621, at pp. 626, 627.

[69]

The claimant appealed to the Full Supreme Court. Section 5 (5) and (6) of the Supreme Court Procedure Act speaks of an appeal against a "judgment" directed to be entered under the section but by s. 5 (7) the appeal is a rehearing of the action and it is plain that the whole of the proceedings from which what is described as the "appeal" is brought is open to review. In fact in the present case no judgment was entered pursuant to the order made by Brereton J. for the reason no doubt that an appeal had been instituted within the time prescribed by O. XXII, r. 1 of the General Rules of the Supreme Court and that by O. XXI, r. 36 of those Rules judgment could not be signed without the leave of the Court or of a judge until after the expiration of twenty-one days from the date when the direction to enter judgment was given. When the matter came before the Full Court a number of submissions were outlined by counsel for the claimant. One of them was that, on its true construction, s. 2A (1) of the Landlord and Tenant Act did not debar the Commonwealth from maintaining the action but that, if it purported to do so, it was beyond power. For the reasons which have been given by the Chief Justice I am of opinion that this last contention raised an inter se question and, by virtue of s. 40A of the Judiciary Act, the "cause pending" in the Supreme Court was thereupon removed into this Court and the Supreme Court ceased to have jurisdiction to deal with it. Since no judgment had been entered in the action following the proceedings before Brereton J. and having regard to the provisions of s. 5 of the Supreme Court Procedure Act and particularly to sub-s. (7) of that section, the "cause pending" in the Supreme Court when the inter se question arose seems to me to have been the whole action. Section 41 of the Judiciary Act requires us to proceed as if the cause had been originally commenced in the High Court and as if the same proceedings had been taken in the cause in this Court as had been taken in the Supreme Court prior to its removal. In the result, therefore, I think we are required to proceed as if, in an action of ejectment commenced by the Commonwealth in this Court, the defences raised in the Supreme Court had been pleaded, an order made directing judgment to be entered for the defendant and an appeal by way of rehearing instituted against that order. The cause removed by the operation of s. 40A of the Judiciary Act comes, however, before this Court in its original jurisdiction and, by s. 32 of the Judiciary Act, it is our duty to grant the remedies to which the parties are entitled.

At a glance

Court

Decision date

Before

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Judgment (73 paragraphs)

Parties