Re Residential Tenancies Tribunal (NSW); Ex Parte Defence Housing Authority

The High Court of Australia considered an application for a writ of prohibition brought by the Defence Housing Authority (DHA) against the Residential Tenancies Tribunal of New South Wales. The dispute concerned whether the Tribunal had jurisdiction to hear and determine a claim brought by a former tenant against the DHA concerning a residential tenancy agreement. The DHA contended that the Tribunal lacked jurisdiction, arguing that the operation of the *Residential Tenancies Act 1987* (NSW) in relation to the DHA was invalid.

The central legal issues before the High Court were whether the *Defence Housing Authority Act 1987* (Cth) was inconsistent with the *Residential Tenancies Act 1987* (NSW) under section 109 of the Constitution, and whether the DHA was subject to the jurisdiction of the NSW Tribunal. This involved considering the extent to which State laws could bind the Crown in right of the Commonwealth, the implications of section 52(ii) of the Constitution regarding departments of the public service transferred to the Commonwealth, and the effect of section 64 of the *Judiciary Act 1903* (Cth).

The High Court held that the *Defence Housing Authority Act 1987* (Cth) did not evince an intention to withdraw the DHA from the operation of State tenancy laws, nor was there an inconsistency under section 109 of the Constitution. The Court found that the DHA, while a Commonwealth authority, was not immune from suit in State courts or tribunals by virtue of the doctrine established in *The Commonwealth v Cigamatic Pty Ltd*. Section 64 of the *Judiciary Act 1903* (Cth) was also considered, confirming that the Commonwealth and its instrumentalities could be sued in State courts in matters where the Commonwealth has consented to be sued. The Court concluded that the DHA was subject to the jurisdiction of the Residential Tenancies Tribunal of New South Wales.

Consequently, the order nisi for a writ of prohibition was discharged, and the prosecutor, the Defence Housing Authority, was ordered to pay the respondents' costs.