McNamara v Consumer Trader and Tenancy Tribunal

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ

JILL McNAMARA (McGRATH)  APPELLANT

AND

CONSUMER TRADER AND TENANCY

TRIBUNAL & ANOR  RESPONDENTS

McNamara (McGrath) v Consumer Trader and Tenancy Tribunal

[2005] HCA 55

29 September 2005
S56/2005

ORDER

1.        Appeal allowed with costs.

2.Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 February 2004 and, in place thereof, order that:

(a)      Leave to appeal to that Court be granted;

(b)      The appeal is allowed with costs; and

(c)The orders of Dunford J are set aside and in their place order:

(i)Appeal allowed with costs;

(ii)Set aside the decision of the Consumer Trader and Tenancy Tribunal dated 8 April 2002;

(iii)Remit the matter to the Tribunal to be determined according to law.

3.The above costs orders are made against the second respondent only.

On appeal from the Supreme Court of New South Wales

Representation:

S C Churches with S D Ower for the appellant (instructed by Marrickville Legal Centre)

No appearance for the first respondent

M G Sexton SC, Solicitor-General for the State of New South Wales with
J M Jagot for the second respondent (instructed by Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

  1. GLEESON CJ.   I agree with the orders proposed by McHugh, Gummow  and Heydon JJ, and with their reasons for those orders.

  2. Section 46(2)(b) of the Transport Administration Act 1988 (NSW) ("the 1988 Act"), provides that, for the purposes of any Act, the Roads and Traffic Authority of New South Wales ("the RTA") is a statutory body representing the Crown. Section 5 of the Landlord and Tenant (Amendment) Act 1948 (NSW) ("the LTA Act"), provides that the LTA Act does not bind the Crown in right of the State of New South Wales. The question is whether the combined effect of those two provisions is that the LTA Act does not bind the RTA.

  3. In Wynyard Investments Pty Ltd v Commissioner for Railways (NSW)[1] this Court, by a narrow majority[2], held that an identically worded provision in s 4(2) of the Transport (Division of Functions) Act 1932 (NSW) ("the 1932 Act"), in combination with the LTA Act, had the effect that the LTA Act did not bind the Commissioner for Railways. The competing views as to the meaning of s 4(2) were summarised in the dissenting judgment of Kitto J as follows[3]:

    "In the Supreme Court a majority of their Honours treated this provision as if it meant that, in considering the applicability of any provision of any Act to the commissioner, he shall be deemed to represent the Crown. If that were the true meaning, the result in this case would necessarily be that the immunity of the Crown from s 62 of the [LTA Act] would involve the immunity of the…

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Details
Case
[2005] HCA 55
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by a tenant against the Roads and Traffic Authority of New South Wales (RTA), the landlord. The RTA had sought an order for vacant possession of the premises from the Consumer Trader and Tenancy Tribunal under the *Residential Tenancies Act 1987* (NSW). The tenant contended that the premises were "prescribed premises" under the *Landlord and Tenant (Amendment) Act 1948* (NSW) and thus exempt from the operation of the *Residential Tenancies Act 1987* (NSW). The central question was whether the RTA, as a statutory body representing the Crown, was entitled to the benefit of an exemption from the *Landlord and Tenant (Amendment) Act 1948* (NSW) that applied to "the Crown in right of the State".

The High Court was required to determine the proper construction of the *Landlord and Tenant (Amendment) Act 1948* (NSW) and the *Transport Administration Act 1988* (NSW). Specifically, the Court had to consider whether the RTA, established under the *Transport Administration Act 1988* (NSW) and designated by section 46(2)(b) of that Act as "a statutory body representing the Crown", qualified for the exemption afforded to "the Crown in right of the State" under the *Landlord and Tenant (Amendment) Act 1948* (NSW).

The Court reasoned that the *Landlord and Tenant (Amendment) Act 1948* (NSW) was intended to apply to private landlords and tenants, and that the exemption for "the Crown in right of the State" reflected a specific legislative intent to exclude Crown instrumentalities from its operation. The Court held that the designation of the RTA as "a statutory body representing the Crown" under the *Transport Administration Act 1988* (NSW) meant that it was to be treated as the Crown for the purposes of any Act. Therefore, the RTA was entitled to the benefit of the exemption in the *Landlord and Tenant (Amendment) Act 1948* (NSW).

The High Court allowed the appeal, set aside the orders of the Court of Appeal and the Supreme Court, and remitted the matter to the Consumer Trader and Tenancy Tribunal to be determined according to law. Costs were awarded against the second respondent.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 23 February 2004 and, in place thereof, order that:

(a) Leave to appeal to that Court be granted;

(b) The appeal is allowed with costs; and

(c) The orders of Dunford J are set aside and in their place order:

(i) Appeal allowed with costs;

(ii) Set aside the decision of the Consumer Trader and Tenancy Tribunal dated 8 April 2002;

(iii) Remit the matter to the Tribunal to be determined according to law.

3. The above costs orders are made against the second respondent only.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ (dissent) HUGH, GUMMOW AND HEYDON JJ HAYNE J (dissent) CALLINAN J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by: HUGH, GUMMOW AND HEYDON JJ,

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