McNamara v Consumer Trader and Tenancy Tribunal

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…