The Commonwealth of Australia v Green, J.H.
[1989] FCA 499
•02 AUGUST 1989
Re: THE COMMONWEALTH OF AUSTRALIA
And: JOHN HENRY GREEN AND ROSEMAREE LUCILLE GREEN
No. QLD G43 of 1989
FED No. 499
Administrative Law
88 ALR 77
10 AAR 478
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Administrative Law - Appeal from Administrative Appeals Tribunal - First Home Owners Act 1983 - joint purchase of residence - one of purchasers previously owned a home - whether other purchasers entitled to apply for assistance under Act - construction of s. 15(1) - literal rule - "each"
First Home Owners Act 1983 - ss. 4(1), 9(1), 14, 15
HEARING
BRISBANE
#DATE 2:8:1989
Counsel for applicant: Ms. C. Holmes
instructed by: Australian Government Solicitor
Counsel for respondents: Mr. N. Samios
instructed by: Walker Pender
ORDER
The application be allowed and the decision of the delegate of the Secretary of the Department of Community Services and Health be affirmed, with no order as to costs.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is an appeal from a decision of the Administrative Appeals Tribunal which was given on 20 April 1989. The tribunal was reviewing a decision of a delegate of the Secretary of the Department of Community Services and Health determining that the respondents (to this application), John Henry Green and Rosemaree Lucille Green, were not eligible for assistance under the First Home Owners Act 1983 ("the Act"). The tribunal decided that all of the provisions of the Act so far as the purchase of a dwelling house at Dinmore was concerned had been complied with, and that the respondents were consequently entitled to assistance under the Act. The central question on appeal is the proper construction of s. 15(1) of the Act.
On 17 May 1985, the respondents entered into a contract for the purchase of a home at 7 Dinmore Street, Dinmore, with Mr. Green's mother, Mrs. Beryl Green. The contract was completed and all three purchasers resided in the Dinmore home until March 1986. Neither of the respondents had owned a dwelling or been party to a contract for the purchase of a dwelling prior to 17 May 1985.
They subsequently purchased a home at 131 Mount Crosby Road, Tivoli, in their own behalf. They applied for assistance in respect of that matter, disclosing the earlier purchase of the home at Dinmore. They were advised that they were ineligible for assistance under the Act because of their previous ownership of a dwelling which had been their principal place of residence.
On 22 April 1987, they lodged an application for assistance under the Act in relation to the Dinmore home. Mrs. Green Snr. was not then an applicant but she was eventually persuaded to join in an application for assistance under the Act.
On 8 December 1987, the Department advised Mrs. Beryl Green Snr. that she was not eligible for assistance as she had previously owned a dwelling which had been her principal place of residence. On the same day the respondents were advised that they were precluded from assistance under the Act because of Mrs. Green Snr.'s previous ownership. Mr. and Mrs. Green applied for a reconsideration of refusal to grant assistance, and on 5 October 1988 they appealed to the Administrative Appeals Tribunal.
The relevant statutory provisions which govern this matter are as follows. Section 4(1) of the Act provides:-
"In this Act, unless the contrary intention appears - . . .
'application' means an application under section 15; . . .
'joint applicant' means any one of 2 or more persons who are applicants in respect of the same application;
. . .
'prescribed person', in relation to a dwelling, means a person who is a prescribed person in relation to that dwelling by virtue of sub-section 14(1), other than a person in respect of whom a direction under section 5 is in force in relation to that dwelling."
Section 9(1) provides:-
"A reference in this Act to purchase, or to ownership, in relation to land or an undivided share in land, shall be read as a reference to purchase or ownership, as the case may be, otherwise than as trustee, of an approved interest in the land or in the undivided share, as the case may be."
Section 14 relevantly provides:-
"(1) Where, on or after 1 October 1983, a person (in this section referred to as the 'home acquirer') has, or 2 or more persons (in this section referred to as the 'home acquirers') together have -
(a) entered into a contract for the purchase of a dwelling situated in Australia; . . .
and the Secretary is satisfied that the home acquirer is or will be, or the home acquirers are or will be, as the case may be, entitled to an exclusive right of occupancy of the dwelling, then
subject to section 5 -
(d) the home acquirer or each of the home acquirers, as the case may be;
(e) any person who, on the date of the contract, or the date on which construction commenced, as the case may be, was the spouse of the home acquirer or of any of the home acquirers, as the case may be; and . . .
is, for the purposes of this Act, a prescribed person in relation to the dwelling."
Sub-section (2) of s. 14 provides:-
"Where a person is a prescribed person in relation to a dwelling and -
(a) the Secretary is satisfied that neither a grant under a prescribed Act nor a payment of assistance under this Act has been made to the prescribed person, either alone or jointly with another person; and
(b) before the date of the contract, or the date on which construction commenced, as the case may be, the prescribed person -
(i) had not owned a dwelling in Australia; and
(ii) had not been a party to a contract (other than a contract that was discharged, otherwise than by performance of the contract, before the expiration of 3 months after it was entered into) for the purchase of a dwelling, being a contract that provided for payment of the whole or part of the purchase price by instalments, either alone or together with another person or other persons,
the prescribed person is, for the purposes of section 15, a person to whom this sub-section applies."
Section 14(5) provides:-
"For the purposes of paragraph (2)(b), a person or persons shall be taken not to have owned a dwelling, or been a party or parties to a contract for the purchase of a dwelling, during any period during which the dwelling was not or was not intended to be, as the case may be, the principal place of residence of the person or persons."
Section 15, under the heading "Applications" provides:-
"(1) Where the person, or each person, who is a prescribed person in relation to a dwelling is a person to whom sub-section 14(2) applies in relation to the dwelling, an application for assistance in respect of the dwelling may be made in accordance with this section.
(2) An application for assistance in respect of a dwelling -
(a) shall be in writing in accordance with a form made available by the Secretary;
(b) subject to sub-section (3), shall be signed by the person, or by each person, who is a person to whom sub-section 14(2) applies in relation to the dwelling; and
(c) shall be furnished to the Secretary.
(3) Where -
(a) an application that is required to be signed by 2 or more persons has been signed by any, but not all, of those persons; and
(b) the Secretary is satisfied, in respect of a person who has not signed the application as mentioned in paragraph (a), that -
(i) the person is unable to sign the application because of physical or mental incapacity, absence or any other reason that the Secretary considers sufficient;
(ii) the person has refused to sign the application;
(iii) the whereabouts of the person are not known; or
(iv) the person has died, the Secretary may, if he considers that the person should be treated as an applicant, direct that the person is to be deemed to have signed the application.
. . ."
The reasoning which led the tribunal to conclude that Mr. and Mrs. Green were entitled to assistance pursant to the provisions of the Act appears from paragraph 9 of their reasons. The tribunal said:-
"It is clear that all three purchasers of the Dinmore home are 'prescribed persons' within the meaning of that term in the Act. It is equally clear that the applicants satisfy the provisions of subsection 14(2), whereas Mrs. Green senior does not."
Then, importantly, the tribunal said:-
"Therefore the applicants are entitled to make a claim under Section 15, but Mrs. Green senior is not. There is nothing in the legislation which requires the applicants to join Mrs. Green senior in an application. There is nothing in the legislation which disqualifies an applicant for assistance under the Act simply because they buy a dwelling jointly with someone who does not qualify."
The conclusions expressed in the last two sentences depend on a view of the provisions of s.15(1). Those conclusions are permissible only if that subsection can be construed as saying that, where there is a person or a number of persons who are eligible for assistance, an application for assistance may be made in accordance with that section. Section 15(2) would then have the effect of providing that the application has to be signed by each person who is eligible for assistance.
On the other hand, it was submitted for the Commonwealth that where there was more than one prescribed person in relation to a dwelling then, properly construed, s. 15(1) requires that only in cases where each prescribed person in relation to a dwelling house be a person to whom s.14(2) applies, can an application be made. If that be the correct interpretation, then the threshhold condition for an application for assistance was not satisfied in this case because Mrs. Green Snr., being one of the persons who was a prescribed person in relation to the dwelling, was not a person to whom s.14(2) applied.
It is relevant to note that s. 3 under the heading "Object of Act" provides:-
"The object of this Act is to encourage and assist persons to purchase or build their own homes, and, in the construction and the administration of this Act, regard shall be had to that object."
Equally pertinent are the observations of Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty. Ltd. v. Federal Commissioner of Taxation (1980-81) 147 CLR 297 at 321:-
"If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."
The difficulty with the interpretation for which counsel for Mr. and Mrs. Green contended is that it does not give any signification to the use of the word "each".
In my judgment, "each" in s.15(1) is used in its ordinary meaning which is consistent with its dictionary meaning - namely, according to the Macquarie dictionary:-
"every, of two or more considered individually or one by one;"
In the Shorter Oxford Dictionary, "each" is defined, in its use as an adjective, as:-
"Every (one of two or more) regarded separately."
Because "each" in its normal signification implies the existence of at least two objects, of which every one of those objects is to be considered, the draftsman in s. 15(1) has drawn a distinction between the situation where there is a single prescribed person in relation to a dwelling and the situation where there is more than one.
Having done that, the sub-section, in my opinion, requires that every person who is a prescribed person in relation to the dwelling has to be a person to whom s.14(2) of the Act applies before an application for assistance in respect of the dwelling may be made. In a case such as this, where there is more than one prescribed person in relation to a dwelling, the sub-section must be construed as saying, "Where each prescribed person in relation to a dwelling house is a person to whom s. 14(2) applies, an application may be made."
The provisions of s. 15(3) are framed to cover the situation where one or more of those persons is unable or refuses to sign the application form. It is also not without significance that in s. 15(3)(a), which addresses the situation where an application that is required to be signed by two or more persons has been signed by any but not all of those persons, the word "any" is used.
The use of the word "each" in s. 15(1) is to be contrasted with the use of the word "any" in s. 15(3)(a).
It is not possible for me to ignore the significance of the use of the word "each" in s. 15(1). Giving it its ordinary meaning, s. 15(1) requires that, before an application for assistance in respect of a dwelling may be made, it is necessary that each person who is a prescribed person in relation to a dwelling be a person to whom s. 14(2) applies. That is the plain meaning of the sub-section and Mr. and Mrs. Green are not within that criterion of eligibility.
The appeal should be allowed, and the decision of the delegate and secretary to the Department of Community Services and Health be affirmed. It is not necessary to consider the question of costs in these proceedings.
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