tions-Essentiality-Offence-Guilty knowledge-National Security (Landlord and Tenant) Regulations, regs. 7AA, 25-The Constitution (63 &64 Vict. C. 12) S. 51 (vi.)-Defence (Transitional Provisions) Act 1946-1947 (No. 77 of 1946 - -No. 78 of 1947)-Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) Nov. 26, 27 (No. 25 of 1948-No. 21 of 1949), 88. 1 (2), 4, 35.

The constitutional validity of the National Security (Landlord and Tenant) Regulations was not an essential condition of the application of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) to determinations of fair rent made under those regulations and existing at the date of the commence-

So held by Dixon, McTiernan, Webb, Fullagar and Kitto JJ., Williams J. dissenting.

Held by Williams J. (1) that on the true constuction of the Act, determin- ations made under the regulations could only have force and effect under the Act if the regulations were valid at the date of its commencement, and (2) the Defence (Transitional Provisions) Act 1946-1947 was valid SO far as it purported to continue the regulations in force until 31st December 1948.

Guilty knowledge of the contravention of or failure to comply with the provisions of S. 35 (1) of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.) is not an element in the offence.

So held by the whole Court.

84 CLR 286

REMOVAL from a Court of Quarter Sessions of New South Wales

to the High Court under S. 40 of the Judiciary Act 1903-1950.

Rose Prentice Brown, married woman, of 42 Penkivil Street, Bondi, was charged at a court of petty sessions in Sydney, on the information of Reginald Rae Green, an officer employed in the office of the Rent Controller, that on or about 24th October 1949 she, contrary to S. 35 of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.), received as rent for premises, being rooms numbers 8/8A, and 9/9A, situate at 27 Ocean Street, Bondi, the sum of £1 17s. 6d. for a period of one week, which exceeded the fair rent of those premises, namely, £1 13s. Od. per week, which was determined on 4th June 1947.

In a certificate given by him under S. 58 of the Landlord and Tenant (Amendment) Act 1948-1949 (N.S.W.), dated 31st January 1950, and admitted in evidence, the Acting Rent Controller for the State of New South Wales certified that ' the fair rent of shared accommodation comprising rooms Nos. 8/8A, 9/9A, being part of the premises situate at No. 27 Ocean Street, Bondi, and being more particularly described in Departmental Plan No. 2522 (of which copy is marked Annexure 'A') and of which a copy was furnished to Lessor with Notices of Determination including services of electricity for lighting and power and goods leased therewith, and Tenant's right to use of power for wireless, iron, toaster and jug, was determined on the fourth day of June 1947, at £1…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown v Green

Details

AGLC: Brown v Green [1951] HCA 76
Case: [1951] HCA 76
Decision Date: 20 December 1951

CaseChat Overview and Summary

The case of *Brown v Green* involved an appeal to the High Court of Australia concerning a conviction for receiving rent in excess of the fair rent determined under Commonwealth regulations. The appellant, Rose Prentice Brown, was charged under section 35 of the *Landlord and Tenant (Amendment) Act 1948-1949* (NSW) for receiving a weekly rent of £1 17s. 6d. for certain premises, which exceeded the fair rent of £1 13s. Od. per week, as determined on 4 June 1947, under the National Security (Landlord and Tenant) Regulations. The determination of fair rent was made under regulation 25 of these regulations, which were due to cease control in New South Wales from 16 August 1948, the commencement date of the NSW Act.

The legal issues before the High Court were twofold. Firstly, the Court was required to determine whether the constitutional validity of the National Security (Landlord and Tenant) Regulations was an essential condition for the continued force and effect of fair rent determinations made under those regulations, as preserved by section 4(1) of the *Landlord and Tenant (Amendment) Act 1948-1949* (NSW). Secondly, the Court had to consider whether guilty knowledge was a necessary element of the offence under section 35(1) of the NSW Act, or if the failure to receive written notification of the rent determination constituted a defence.

A majority of the High Court, comprising Dixon, McTiernan, Webb, Fullagar, and Kitto JJ., held that the constitutional validity of the Commonwealth regulations was not an essential condition for the application of the NSW Act to existing fair rent determinations. They reasoned that section 4(1) of the NSW Act, by referring to determinations made "under the Commonwealth Regulations" and "having force or effect," assumed the operation of those regulations and intended to carry over existing arrangements, rather than making the continued constitutional validity of the Commonwealth regulations a prerequisite. The Court found that the purpose of the NSW Act was to transition control from federal to state authority, and its operation should not be made dependent on the uncertain constitutional validity of the Commonwealth regulations. Regarding the second issue, the Court held that guilty knowledge was not an element of the offence under section 35(1), as the provision was part of a regulatory scheme designed to protect a civil right through enforcement, rather than to punish acts with criminal intent. The Court also found that the failure to provide written notice of the determination, as required by regulation 25(8), was not a defence to the charge.

Consequently, the appeal was dismissed. Williams J. dissented on the first issue, holding that determinations could only have force and effect if the regulations under which they were made remained valid. However, he ultimately agreed with the majority that the Defence (Transitional Provisions) Act 1946-1947 was valid in continuing the regulations until 31 December 1948, and thus the regulations were valid at the relevant time. The Court ordered that the Crown bear its own costs of the proceedings in the High Court.

Orders