Queensland Newspapers Pty Ltd v McTavish - [1951] HCA 51

QUEENSLAND NEWSPAPERS PTY. LTD. McTAVISH

RESPONDENT. DEFENDANT, Constitutional Law (Cth.)-Defence-National security-Landlord and tenant

Restriction on eviction of protected persons-Alternative accommodation- Cessation of hostilities-War time legislation and regulations thereunder BRISBANE,

OperationTransitional period-Continuance-Validity of legislation and June 21, 22.

regulations-The Constitution (63 &64 Vict. c. 12), 8. 51 (vi.), (xxxix.)- MELBOURNE,

Defence (Transitional Provisions) Act 1946-1949 (No. 77 of 1946-No. 70 of 1949), S. 6 (1)-National Security Act 1939-1946 (No. 15 of 1939-No. 15 of 1946), S. 19-National Security (War Service Moratorium) Regulations (S.R. 1942 No. 437-1948 No. 109), regs. 28A, 30*.

Regulations 28A and 30 of the National Security (War Service Moratorium) Regulations impose restrictions upon the ejectment of a class of persons which includes members and discharged members of the armed forces; women and parents depending or recently depending upon such members or receiving pensions payable in consequence of their death or incapacity.

Held that on their true construction the purpose of the regulations was not to confer on members or former members of the armed forces some recom- pense or reward for war service but was to deal with conditions arising out of and in the course of the war and existing in the transition from war to peace. Accordingly the Defence (Transitional Provisions) Act 1946-1949, to the extent to which it purported to continue the regulations in force until 31st December 1950, is not authorized by the defence power and is invalid.

Collins v. Hunter, (1949) 79 C.L.R. 43, applied.

ORDER TO REVIEW.

Queensland Newspapers Pty. Ltd. as landlord gave notice to Archibald Gordon McTavish, to quit and deliver up possession of certain premises being part of Victory Chambers, Adelaide Street,

* The operation of regs. 28A and 30 has been terminated in New South Wales, Victoria, South Australia and Western Australia, where their place has been taken by State legislation. This has not been done in Queensland.

85 CLR 31

Brisbane, and of which he was the tenant. This notice was given under S. 41 (1) (5) (8) (ii) of The Landlord and Tenant Act of 1948 (Q.). As the tenant failed to comply with the notice to quit an informa- tion was exhibited by the landlord, SO that proceedings might be instituted for ejectment. After hearing evidence the stipendiary magistrate would have made an order for possession but held MoTAVISH. that in view of regs. 28A and 30 of the National Security (War Service Moratorium) Regulations he was unable to do SO. The magistrate found that the tenant was a protected person within the meaning of these regulations and that reasonably suitable alterna- tive accommodation was not available. Accordingly he dismissed the information.

From this order an appeal was brought to the High Court, Fullagar J. granting an order nisi to review.

M. B. Hoare (with him W. B. Campbell), for the appellant. The Defence (Transitional Provisions) Act 1941-1949, in SO far as it attempts to continue the operation of regs. 28A and 30 of the National Security (War Service Moratorium) Regulations,…

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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Details

Case: [1951] HCA 51
Decision Date: 3 October 1951

CaseChat Overview and Summary

Queensland Newspapers Pty Ltd (the landlord) sought to evict Archibald Gordon McTavish (the tenant) from premises in Brisbane. The tenant, a discharged member of the armed forces, was considered a "protected person" under the National Security (War Service Moratorium) Regulations. The stipendiary magistrate dismissed the landlord's information for ejectment, finding that the tenant was a protected person and that no reasonably suitable alternative accommodation was available. The landlord appealed this decision to the High Court.

The central legal issue before the High Court was the validity of regulations 28A and 30 of the National Security (War Service Moratorium) Regulations, as continued in force by the Defence (Transitional Provisions) Act 1946-1949, in relation to the constitutional defence power. Specifically, the court had to determine whether these regulations, which restricted the eviction of protected persons, were a valid exercise of the Commonwealth's legislative authority at the time of the eviction proceedings in August 1950.

The High Court held that the purpose of the regulations was to address conditions arising from the war and the transition to peace, rather than to provide a reward for war service. The court reasoned that the Defence (Transitional Provisions) Act 1946-1949, by purporting to keep these regulations in force until 31 December 1950, exceeded the scope of the defence power. The court applied the principle established in *Collins v. Hunter* (1949) 79 CLR 43, finding that the regulations, in their extended operation, were not authorised by the defence power and were therefore invalid.

Consequently, the High Court allowed the appeal, finding that the regulations relied upon by the magistrate were invalid and that the magistrate should have proceeded to make an order for possession.

Orders