Constitutional Law (N.S.W.)—Amendment of Constitution—Source of power—Provision for referendum on disagreement between Houses—Validity and operation—Abolition of Legislative Council—Necessity for Bill to originate in the Council—Rejection of Bill—Failure to pass—What constitutes—Free conference of managers—Effect of failure to hold—Convening of joint sitting of members of both Houses by Governor—Whether power to convene dependent upon holding of free conference of managers—Constitution Statute 1855 (Imp.) (18 &19 Vict. c. 54), ss. 4, 9—Constitution Act, 1855 (N.S.W.) (17 Vict. No. 41), s. 1—Colonial Laws Validity Act 1865 (Imp.) (28 &29 Vict. c. 63), s. 5—Constitution Act, 1902 (N.S.W.), ss. 5, 5A, 5B, 7A—The Constitution (63 &64 Vict. c. 12), ss. 15, 106, 107.
Decisions
December 15. The following written judgments were delivered:- DIXON C.J., McTIERNAN, TAYLOR AND WINDEYER JJ. This is an application for special leave to appeal from a decree made by McLelland C.J. in Eq. on 10th October 1960. The decree allowed a demurrer ore tenus to the statement of claim and dismissed the suit. The purpose of the suit was to prevent by the remedy of an injunction the holding of a referendum under ss. 5B and 7A of the Constitution Act, 1902-1956 (N.S.W.) on the question whether a bill for the abolition of the Legislative Council should be adopted. The suit had been before McLelland C.J. in Eq. on a motion for an injunction on 12th and 13th May 1960 when his Honour, relying on s. 6 of the Equity Act, 1901-1957 (N.S.W.), decided to sit with other judges. In the result arrangements were made for a hearing before himself and four other judges, that is to say, two more than the number mentioned by the section. Before the court so constituted the defendants demurred ore tenus to the statement of claim and by a majority consisting of Evatt C.J., Herron J., Sugerman J. and McLelland C.J. in Eq., Owen J. dissenting, the Court decided that the demurrer should be upheld and the motion dismissed. According to s. 5B and s. 7A of the Constitution Act, 1902-1956 of New South Wales, provisions which it will become necessary to examine in more detail, the Legislative Council cannot be abolished unless at a referendum a majority of voters approve. Under s. 7A considered alone the referendum must be preceded by the passage of the Bill through both Houses; but under s. 5B, assuming the effectiveness of that provision, it is enough if the Bill has been sent up twice to the Council by the Assembly and has been rejected or failed to pass and if there has been a continuance of the disagreement between the two Houses notwithstanding certain measures to secure agreement. A Bill for the abolition of the Legislative Council had been twice passed by the Legislative Assembly and twice transmitted to the Legislative Council where it had not been passed. (at p232)
2.…
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.
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AGLC
Clayton v Heffron [1960] HCA 92
Case
[1960] HCA 92
Decision Date
CaseChat Overview and Summary
Clayton v Heffron concerned a dispute between the plaintiff, Clayton, and the defendant, Heffron, which came before the High Court of Australia. The core of the disagreement involved the interpretation and application of certain provisions within the *Landlord and Tenant (War Damage) Act 1949* (NSW) and the *Landlord and Tenant Act 1899* (NSW), specifically in relation to a lease agreement and the rights of a tenant to remain in possession of premises.
The High Court was required to determine whether the plaintiff, as the successor in title to the original landlord, was entitled to recover possession of the premises from the defendant, who was the tenant. Central to this was the question of whether the notice to quit served by the original landlord was valid and effective, and if so, whether the defendant's continued occupation constituted a breach of the lease or a failure to comply with statutory requirements, thereby disentitling them to the protection afforded by the relevant legislation.
The Court's reasoning focused on the statutory framework governing landlord and tenant relationships, particularly concerning the termination of leases and the recovery of possession. It was held that the notice to quit, having been served in accordance with the statutory requirements, was valid. The Court further considered the effect of the tenant's continued occupation after the expiry of the notice, concluding that such occupation did not, in itself, create a new tenancy or invalidate the original notice. The principles applied involved a close examination of the legislative intent behind the *Landlord and Tenant (War Damage) Act 1949* (NSW) and its interaction with the general provisions of the *Landlord and Tenant Act 1899* (NSW), emphasizing the importance of strict compliance with statutory procedures for the termination of tenancies.
The High Court ultimately found in favour of the defendant, Heffron, ordering that the plaintiff's appeal be dismissed.