Defence Housing Authority, Ex parte- Residential Tenancy Tribunal & Henderson

[1996] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S75 of 1996

In the matter of -

An application for a writ of prohibition against  -

THE RESIDENTIAL TENANCIES TRIBUNAL OF NEW SOUTH WALES

and

KRIMHILDE HENDERSON and ARVIN T. HENDERSON

Respondents

Ex parte -

THE DEFENCE HOUSING AUTHORITY

Prosecutor

McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 APRIL 1996, AT 10.30 AM

Copyright in the High Court of Australia

MR R.J. ELLICOTT, QC:   If your Honour pleases, I appear for the prosecutor, with MR S.J. GAGELER and DR J.G. RENWICK.  (instructed by Bruce & Stewart)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:  I appear with my learned friend, MR L.S. KATZ, for the Attorney‑General of New South Wales.  (instructed by the Crown Solicitor for New South Wales)

HIS HONOUR:   Yes, Mr Ellicott.

MR ELLICOTT:   Your Honour, I understand that there are two other parties that would be interested in this:  of course, the Hendersons who are the applicants for relief before the Tribunal and the Tribunal itself.  A letter was sent to the Hendersons.  I cannot say that they have been formally served with the documents but so far as we know they are aware of the proceedings.  I am not seeking to gain anything from that but simply to indicate to your Honour that - - -

HIS HONOUR:   There is no necessity for them to be here, is there?

MR ELLICOTT:   No, that is right.

HIS HONOUR:   I do not know when this practice grew up of the other side coming along on order nisis for writs of prohibition but, certainly, in my early days at the Bar it just did not happen.  You went along to the judge in chambers and he made or did not make the order.

MR ELLICOTT:   Yes.  I think your Honour can assume that neither of those potential parties are here.  The Solicitor is here, of course, in another capacity because we have had to send out those notices under section 78B.  That is how that occurs.

HIS HONOUR:   I have read all the material and I have refreshed my recollection of your list of cases and perhaps I just might ask the Solicitor‑General what he has to say about it first, Mr Ellicott.

MR ELLICOTT:   If your Honour pleases.

MR MASON:   We have no opposition to the proposed order.  It is just the fact that we got the 78B notice and the word “Cigamatic” attracted our attention.

HIS HONOUR:   Yes.  That being so, you will have your orders, as asked, Mr Ellicott.

MR ELLICOTT:   If your Honour pleases.  There was only one other matter that we wanted to raise.  Your Honour might be aware - I am sure your Honour is - that there are arguments around that the defence power is an exclusive power and we did want to add that into the grounds.

HIS HONOUR:   Sorry, that it is an exclusive power?

MR ELLICOTT:   Yes.

HIS HONOUR:   That you cannot rely on anything else.

MR ELLICOTT:   States cannot pass laws with respect to defence and that this is an intrusion into that area.  That would be the argument.

HIS HONOUR:   It is subject to 109.

MR ELLICOTT:   Of course, there is the 109 point, but this is a separate point.  If your Honour looks at the grounds on page 2, it would really mean this:  putting in, in the third line, a 2:

within the exclusive power of the Commonwealth Parliament under -

(a)  section 52(ii), or

(b) section 51(vi) of the Constitution.

I do not mind if the words “if any” go in there.

HIS HONOUR:   You will have to argue long and hard to get me to agree, even on a prima facie basis, that 51(vi) is an exclusive power. It is subject to the Constitution.

MR ELLICOTT:   Yes.  I appreciate that, your Honour.  Anyhow, we will see how we go on that one.  I guess, at the hearing, if the Court was impressed with the thought that it could be, then the Court will deal with it appropriately.

HIS HONOUR:   Yes, you can make - - -

MR ELLICOTT:   I will not press it at this stage, your Honour.  If your Honour would make the orders asked and grant the stay, your Honour.

HIS HONOUR:   Yes, I will make those orders and I certify that this is a proper matter for the attendance of counsel.

MR ELLICOTT:   This will, in due course, go into the Full Court’s list.

HIS HONOUR:   Yes.  You may take out your order, Mr Ellicott, and I will adjourn the proceedings.

AT 10.34 AM THE MATTER WAS ADJOURNED