The Commonwealth v Rhind

[1966] HCA 83

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Taylor, Menzies and Owen JJ.

THE COMMONWEALTH v. RHIND

(1966) 119 CLR 584

21 December 1966

Constitutional Law (Cth)—Statutes—Ejectment (N.S.W.)

Constitutional Law (Cth)—High Court original jurisdiction—Inter se question—Removal of causes to the High Court—Cause received in original jurisdiction—State statute denying Commonwealth the right to sue in Supreme Court—State Supreme Court exercising federal jurisdiction—Whether State statute valid—"Cause" pending in Supreme Court—Appeal from decision of the State Supreme Court judge sitting without a jury—Inter se question arising on appeal from decision—The Constitution (63 &64 Vict. c. 12), s. 75 (iii.)—Judiciary Act 1903-1965 (Cth), ss. 32, 40A, 41—Supreme Court Procedure Act, 1900-1965 (N.S.W.), ss. 3, 5*—Landlord and Tenant Act, 1899-1965 (N.S.W.), s. 2A**. Constitutional Law—Crown—Execution of document—Document relating to land vested in Commonwealth—Notice to quit—Executed by delegate of Minister charged with administration of Act relating to acquisition of land by Commonwealth—Lands Acquisition Act 1955-1957 (Cth), ss. 60, 61*. Constitutional Law (Cth)—Commonwealth of Australia as juristic person—Commonwealth statute purporting to incorporate Commonwealth of Australia for purposes of holding and dealing with land—The Constitution (63 &64 Vict. c. 12)—Lands Acquisition Act 1955-1957 (Cth), s. 61*. Statutes—Interpretation—Crown—Crown in right of Commonwealth—When bound by statute—General principles—Landlord and Tenant Act, 1899-1965 (N.S.W.), s. 2A*. Ejectment (N.S.W.)—Jurisdiction of Supreme Court of New South Wales—Restriction by statute on right to commence action in that Court—Whether such statute limits jurisdiction or gives defence to action if commenced—Landlord and Tenant Act, 1899-1965 (N.S.W.), s. 2A*.

Decisions

December 21.
The following written judgments were delivered:-
BARWICK C.J. On 15th February 1965 the defendant was tenant to the Commonwealth of Australia and the occupant of a dwelling house at Woolwich, Sydney, under a weekly tenancy in respect of which the weekly rental did not exceed 12 pounds 12s. 0d. per week or an equivalent sum calculated in respect of any other period. On that day a notice directed to the defendant to quit and deliver up possession of the premises was signed "for and on behalf of the Commonwealth of Australia" by the Chief Property Officer for New South Wales of the Department of the Interior. The Minister for the Interior by a writing signed on 19th November 1959 had authorized that Chief Property Officer to sign for and on behalf of the Commonwealth of Australia all notices to quit which might be addressed to tenants of premises owned by the Commonwealth in the State of New South Wales, the service of which should have been previously authorized by the Minister. Presumably the Minister prior to 15th February 1965 had authorized the service upon the defendant of a notice to quit. The notice was duly served, but the defendant failed to deliver up possession of the premises within the time specified. Thereupon the Commonwealth of Australia as claimant commenced an action of ejectment by writ of summons against the defendant in the Supreme Court of New South Wales. The defendant entered an appearance and filed particulars of defence. By these he raised a defence that the weekly tenancy had not been determined (this defence being an attack upon the efficacy of the notice to quit) and an alternative defence that the tenancy which had been determined was a tenancy of a dwelling house actually occupied by the defendant in respect of which the rent did not exceed 12 pounds 12s. 0d. per week or its equivalent calculated in respect of any other period (this being a reference to s. 2A of the Landlord and Tenant Act, 1899-1965 (N.S.W.)); and that therefore the Supreme Court was not "a court of competent jurisdiction to hear and determine the claim". The action was tried on 21st September 1965 when the primary judge gave a verdict for the defendant, and directed that judgment be entered accordingly. The grounds upon which the primary judge took this course were, first, that the notice to quit was ineffective because having regard to the provisions of s. 60 of the Lands Acquisition Act 1955-1957 (Cth) it could have been validly signed in the circumstances only by the Attorney-General; and, secondly, because by reason of s. 2A of the Landlord and Tenant Act (the Act) the Supreme Court had no jurisdiction to entertain an action of ejectment where the terms of that section were satisfied. (at p590)

2. We are told that the constitutional validity of s. 2A of the Act, in so far as it would include the Commonwealth of Australia in its operation, was not expressly raised for discussion before the primary judge. Neither the primary judge nor either party appears to have realized that the validity of s. 2A might be involved in the alternative defence raised by the defendant. Indeed, the Commonwealth of Australia appealed from the decision of the primary judge to the Full Court of the Supreme Court of New South Wales. There the Solicitor-General for the Commonwealth at the outset of the hearing of the appeal specifically raised the constitutional validity of s. 2A of the Act in relation to proceedings in ejectment by the Commonwealth whereupon the Full Court decided properly that a question as to the limits inter se had then arisen and that therefore its jurisdiction to proceed any further with the appeal before it had ceased. The "cause" thereupon was removed into this Court by s. 40A of the Judiciary Act 1903-1960 (Cth). (at p590)

3. However, though the Court and the parties may not have perceived it, a question inter se could, none the less, have arisen if it was necessarily involved in the alternative defence raised before the primary judge. (at p591)

4. As will later appear, I do not think that in the result in this case it matters whether the removal took place at the time of the filing of the defence, or at the commencement of the hearing by the Full Court. But none the less, in deference to other possible opinions in that connexion, I should examine whether the removal took place at the earlier point. (at p591)

5. The alternative defence was that the Supreme Court had no jurisdiction to hear the action for ejectment brought by the Commonwealth. The reason assigned for this lack of jurisdiction was s. 2A of the Act. The jurisdiction of the Supreme Court to hear such an action could only have been federal jurisdiction invested in it by s. 39 (2) of the Judiciary Act, for the claimant in the action was the Commonwealth of Australia: The Constitution, s. 75 (iii.); Judiciary Act, s. 39 (1) and (2). This conclusion is unaffected by s. 61 of the Lands Acquisition Act, as to which I shall say something later. (at p591)

6. The Supreme Court's jurisdiction to entertain an action of ejectment at the suit of the Commonwealth is of a like kind to that vested in this Court by s. 75 (iii.). This Court's jurisdiction extends to actions brought by the Commonwealth to recover possession of any land, irrespective of the nature of the relationship which had previously existed between the Commonwealth and the person in possession of it. But the investiture of this jurisdiction in the State Court is only within "the limits" of the jurisdiction of that Court, whether such limits are as to locality, subject matter or otherwise: s. 39 (2). The operation of this section is ambulatory and relates to the limits for the time being of the jurisdiction of the State Court. Thus the challenge to the Supreme Court's jurisdiction in this case was that s. 2A of the Act relevantly set a limit to the State jurisdiction of the Supreme Court. It seems to have been conceded or assumed that it did affect that jurisdiction to some extent for the only reply of the claimant to the alternative defence, so far as the record shows, was to assert that that section of the Act did not restrict "the Crown", no distinction being made between the Crown in right of the State and the Crown in right of the Commonwealth. Thus the argument at that stage was merely as to the extent of the limit to jurisdiction set by the section. (at p591)

7. The primary judge decided, upon the authority of Housing Commission of N.S.W. v. Panayides (1963) 63 SR (NSW) 1; 80 WN 312 that, assuming the claimant Commonwealth, regarded as the corporation created by s. 61 of the Lands Acquisition Act, to be a statutory body representing the Crown, it was none the less not entitled to be treated as the Crown for the purposes of s. 2A of the Act. His decision therefore that the Supreme Court had no jurisdiction apparently was upon the footing that although s. 2A did not operate to restrict the access of the Crown itself to the Supreme Court in an action of ejectment, it did deprive that Court of jurisdiction to entertain an action of ejectment at the instance of anyone else in respect of premises of the kind described. Involved in this approach to the matter by him, was, I think, an unexpressed assumption that as the Commonwealth of Australia to which the Constitution refers was not in his view the plaintiff, invested federal jurisdiction was not being exercised. (at p592)

8. Neither the question whether the claimant was relevantly the Crown nor the question whether there was a relevant limit to the State jurisdiction of the Supreme Court itself, in my opinion, raised a question inter se. The claimant's reply raised only a question as to the construction of s. 2A and the primary judge's decision turned on a view of the matter to which I have referred but which did not touch upon any question as to the limits of constitutional power. In my opinion, no such question of constitutional powers, legislative, judicial or executive was expressly or necessarily raised by the alternative defence. It seems to me therefore that no removal of the cause was effected prior to the commencement of the hearing of the claimant's appeal to the Full Court of the Supreme Court. (at p592)

9. Before the Full Court the constitutional validity of s. 2A of the Act was expressly challenged. The challenge was not that the section was inconsistent with s. 39 of the Judiciary Act. That would not have raised a question inter se: O'Sullivan v. Noarlunga Meat Ltd. (1956) 95 CLR 177 . But the submission was that the Act was ultra vires, constitutionally invalid, if upon its proper construction the section merely took away the right of certain persons to resort to the Supreme Court, and included the Crown in right of the Commonwealth as one of those persons. So regarded, the section in denying the Commonwealth access to the Supreme Court exercising federal jurisdiction trenched upon the legislative power of the Commonwealth to determine in what cases, in what courts and at whose behest federal judicial power should be exercised. The validity of s. 2A was thus impugned upon the ground that it sought to deal with a subject matter of legislative power in respect of which only the Commonwealth may pass laws. That submission raised a question inter se: see Dennis Hotels Pty. Ltd. v. Victoria (1962) AC 25; (1961) 104 CLR 621 . (at p592)

10. It cannot be doubted that at the time the inter se point thus arose there was a cause pending in the Supreme Court in which it did arise. But what was that cause and what are the consequences of its removal into this Court by the operation of s. 40A of the Judiciary Act? (at p593)

11. The primary judge sat to hear the action without a jury pursuant to s. 3 of the Supreme Court Procedure Act, 1900-1965 (N.S.W.). He made no finding of fact other than a finding of those facts which would bring the case within s. 2A of the Act. He decided that he had no jurisdiction to hear the action. Though he did express the view that the notice to quit was ineffective, he had therefore no basis on which to find a verdict. None the less he purported to do so and directed that judgment, i.e., judgment after verdict for the defendant in ejectment, be entered. (at p593)

12. Section 5 (2) and (3) of the Supreme Court Procedure Act authorizes a judge acting for the Court to direct that judgment be entered upon the verdict he has found sitting as a judge without a jury within s. 3 of that Act. Section 5 (2) and (5) provides that the entry of judgment pursuant to his direction shall have the like force and effect as the signing of judgment, that is to say, the same force and effect as a judgment of the Court. But, by O. XVIII, r. 8 of the General Rules of the Supreme Court, such judgment shall not be entered without the leave of the court or a judge until after the expiration of twenty-one days from the direction. The schedule to the Common Law Procedure Act, 1899-1964 (N.S.W.) provides for various forms of judgment in ejectment which may be signed but none of these fits the case of a lack of jurisdiction in the Supreme Court to entertain the action. Judgment in a form akin to that given upon a successful plea in abatement would seem to be appropriate but certainly not a judgment for the defendant after verdict. (at p593)

13. But in any case, a judgment which the judge directs to be entered pursuant to s. 5 (2) of the Supreme Court Procedure Act only has the same force and effect as a judgment of the Court if there is no appeal against it: s. 5 (5). Section 5 (6) provides for an "appeal". Order XXII, r. 1 of the General Rules requires that such an appeal shall be by notice of motion filed within twenty-one days of the date of the order, i.e., of the direction to enter judgment. Section 5 (7) provides that the appeal shall be by way of rehearing, the Court on appeal having all the powers of the judge including powers of amendment, the power of making findings of fact and full discretionary power to receive further evidence upon questions of fact. (at p593)

14. The situation brought about by s. 5 of the Supreme Court Procedure Act seems to be that the judge sitting under s. 3 may determine the facts and render a verdict which will have in all respects the like force and effect of the verdict of the jury. He may thereafter act as and for the Court in directing judgment to be entered. If the parties accept that direction a judgment may be entered which will have the force and effect of a judgment of the Court. But if either party is unwilling to accept that direction and "appeals" against it, nothing can be done in the Supreme Court in pursuance of the direction. The question of what judgment should be entered upon the verdict is then left to the decision of the Court in Banco much as it was when a motion for judgment was a commonplace in Banc. The verdict itself is also thrown open for the consideration of the Court. Indeed, the rehearing of the action could virtually become a trial at Bar. By Act No. 32 of 1965 which received assent on 20th December 1965 the Court of Appeal Division of the Supreme Court was substituted throughout s. 5 of the Supreme Court Procedure Act for the Court in Banco and sub-s. (5) of s. 5 was repealed. The claimant lodged a notice of appeal on 12th October 1965. Thus, even if the repeal of sub-s. (5) of s. 5 has any relevant effect, and I do not think it has, its repeal does not in any case affect the present matter. The "appeal" was in fact heard by the Court of Appeal. But, again, nothing, in my opinion, turns on this circumstance: see s. 21F of the Supreme Court and Circuit Courts Act, 1900-1965. (at p594)

15. It seems to me that, having regard to these provisions of the Supreme Court Procedure Act, the order directing judgment to be entered up is to be distinguished from a judgment of the Supreme Court determining the issues in the action. The judge in directing that judgment be entered exercises the power of the Court, so that his direction is an act of the Court and not merely an act of a judge of the Court: see s. 5 (3). But the effect of the General Rules is that no judgment could be entered up in pursuance of it until after the time for appeal from the judge's direction has expired. An appeal against the direction to enter it having been duly lodged, no judgment in the Supreme Court could be entered in pursuance of it. Although s. 5 (6) speaks of the appeal "against the judgment so directed by the judge to be entered" the appeal is really against direction to enter judgment. The language of the sub-section was probably dictated in part by the circumstance that the verdict of the judge as well as his direction to enter judgment could be included in the appeal. Generally it is the verdict rather than the form of judgment directed to be entered which is under challenge. Consequently, at the stage that the inter se point arose in this case, whilst there was a direction of the Court that judgment be entered for the defendant, there was in law no judgment of the Supreme Court in the action: and no action could ever be taken in the Supreme Court upon the direction (cf. Riley v. Nelson (1965) 119 CLR 131 ). (at p595)

16. An appeal to the Supreme Court from an inferior court is clearly itself a cause pending in the Supreme Court within the meaning of ss. 40 and 40A of the Judiciary Act, I respectfully agree with what Isaacs J. (with whom Starke J. agreed) said in George Hudson Ltd. v. Australian Timber Workers' Union (1923) 32 CLR 413, at pp 428-431 . But here the "appeal" is to the Supreme Court from a verdict and a direction to enter judgment to which, in the circumstances, no effect could be given as Isaacs J. pointed out in the abovementioned case that an appeal to the Supreme Court from an order of the Supreme Court at first instance may be regarded as being in the appellate and not in the original jurisdiction of the Supreme Court. He was not referring however to circumstances such as the present but rather, I should think, to the position which would arise in the case of a judgment in an action in a Supreme Court where the judge at first instance sat throughout as the Court itself in contradistinction to the position at common law. There, the Court had to be moved for judgment after verdict, a course rendered unnecessary by statutory provisions for signing judgment after verdict, etc. but which is reflected in the structure of s. 5 of the Supreme Court Procedure Act: see Common Law Procedure Act, s. 133 and s. 5 (6) of the Supreme Court Procedure Act. In any case, the purpose for which Isaacs J. differentiated original and appellate jurisdiction in a Supreme Court was to found the proposition that an appeal to a Supreme Court from an inferior Court was a cause pending in a Supreme Court. I do not understand him to be asserting that where there was no judgment of the Supreme Court therein the action in which the appeal was pending had itself ceased to be a cause pending in the Supreme Court. Indeed, having regard to what his Honour said at p. 428 of the report of George Hudson Ltd. v. Australian Timber Workers' Union (1923) 32 CLR 413 , it may be said that, even where there was a judgment of a Supreme Court resolving the issues in the action, the cause continued to be pending during the course of the appeal to the Supreme Court from that judgment. But there is no need for me to pursue that point here for I am dealing with a case where as I have said there is no judgment of the Supreme Court in the action. There is only a direction of the Court to enter judgment which is virtually vacated by the lodging of the appeal to the Court in Banco - and now to the Court of Appeal. In such a case, I am unable to hold that the action itself was not still pending before the Supreme Court in Banco or the Court of Appeal at the time the Court of Appeal entered upon the hearing of the "appeal": see s. 5 (13). What was on foot was a rehearing of the action. (at p596)

17. In the case of George Hudson Ltd. v. Australian Timber Workers' Union (1923) 32 CLR 413, Isaacs J. said of the removal to this Court of an appeal to the Supreme Court from an inferior Court,

"'Cause pending' being as I have said a term applicable to both original and appellate jurisdiction of the Supreme Court, the 'cause' whatever it is, is 'removed' by the self operating provisions of the section" (40A) "to this Court, which by later words is directed to hear it as in its original jurisdiction . . . . The moment that" (the question inter se) "arises the jurisdiction of the Supreme Court vanishes and the cause passes by force of the statute to the High Court to be dealt with under its original jurisdiction": per Isaacs J. (1923) 32 CLR, at p 431

Earlier his Honour had said that this Court's jurisdiction exercised upon the removal could not be appellate because the conditions of s. 73 of the Constitution had not been satisfied in that case: i.e., there had been "no judgment, decree, order or sentence of the Supreme Court". Here there was no judgment of the Supreme Court in the action at the time of the removal: and as I have pointed out, the direction of the Supreme Court to enter judgment had become inoperable in the Supreme Court. In my opinion, the cause pending in the Supreme Court for the purposes of s. 40A of the Judiciary Act at the time the question inter se arose was the action in ejectment and it was that action which was removed into this Court. In my opinion, it was received into the original jurisdiction of this Court and s. 32 rather than s. 37 of the Judiciary Act applies to it. (at p596)

18. Sections 32 and 41 of the Judiciary Act require the Court to proceed after the removal of the cause whatever it then was in a Supreme Court, as if it had been commenced in this Court and to grant those remedies to which the parties to the cause as it is constituted in this Court after removal are legally or equitably entitled. Even if it be assumed that what is removed here is merely the "appeal" of the Commonwealth to the Supreme Court from the direction to enter judgment that "appeal" is to be a rehearing of the action. Thus, in any case, this Court, in my opinion, is required by s. 32 of the Judiciary Act to give the Commonwealth the relief it would be entitled to in an action of the same kind commenced in this Court. This Court, in my opinion, cannot treat the matter before it as an appeal in the strict sense in the decision of which the Court is limited to giving such judgment as the tribunal from which the appeal is brought could have given. In this connexion the contrast between the language of s. 32 and the language of s. 37 of the Judiciary Act is of significance. In my opinion, this Court could not merely dismiss the appeal brought against the direction to enter judgment; nor could this Court direct judgment to be entered in the Supreme Court. The case is not one in which the Court could be required to exercise the power given to it by s. 42 of the Judiciary Act for quite clearly it could not be held that a question under the Constitution or involving its interpretation had not arisen in the Supreme Court. If it does not exercise the power of remission given to it by s. 45, it can only give a judgment of this Court appropriate to the rights of the parties in an action of ejectment commenced in this Court. Consequently, in my opinion whatever the limits upon the jurisdiction of the Supreme Court, this Court should now directly consider the claim of the Commonwealth to recover possession of the subject land. (at p597)

19. Upon the view I take of the consequences of the removal of the cause out of the Supreme Court into this Court, the question of the jurisdiction of the Supreme Court disappears from the case. I do not find this a strange result. For the Commonwealth set out to obtain an exercise of federal judicial power. It sought a judgment in ejectment in an invested federal jurisdiction of the Supreme Court. A question having arisen as to the competence of the Supreme Court in the matter in such a way as to cause the removal of the cause into this Court, it seems appropriate that this Court being able in the exercise of federal judicial power to give to the Commonwealth a remedy to which it is entitled should now do so. The purpose of the Commonwealth's action was not to settle the jurisdiction of the Supreme Court but to obtain possession of its land from a person who is not entitled thereto. (at p597)

20. On this footing the only question is as to the effectiveness of the notice to quit. This turns exclusively upon the construction of s. 60 of the Lands Acquisition Act. In my opinion, this section is purely facultative. It is so expressed and I can find no reason in the subject matter or in the other provisions of that Act for concluding that the legislature intended all the instruments which s. 60 describes to be executed by the Attorney-General. In particular, I am unable to accept the view that s. 60 should be read as mandatory because of the presence in the Act of s. 61. In my opinion, the notice to quit signed by the Chief Property Officer pursuant to the Minister's authority was effective to terminate the tenancy under which the defendant was formerly holding the land. Consequently, in my opinion, the Commonwealth is entitled to judgment in ejectment in this Court. (at p598)

21. However, as they have been fully debated, and as my view of the effect of s. 40A of the Judiciary Act in this case may not be shared by others, I should express my opinion upon the several questions which have been thought to be involved in the cause which has been removed here. Logically, the first question is whether s. 2A does effect a limit to the otherwise general State jurisdiction of the Supreme Court in ejectment. For if it does, the invested federal jurisdiction will shrink pro tanto. Also, the Crown would not, in my opinion, have any prerogative right to bring an action in a court which by statute that Court has no jurisdiction to entertain. But I have come to the conclusion that s. 2A merely provides a defendant who can bring the plaintiff and the subject matter within its terms with a defence to an action of ejectment in the Supreme Court. Language which may be sufficient to deprive a statutory court such as the District Court of jurisdiction is not necessarily apt to limit the jurisdiction of a superior court such as the Supreme Court of New South Wales. In my opinion, s. 2A does not set a limit to the jurisdiction of the Supreme Court and thus does not reduce the ambit of the federal jurisdiction of that Court in ejectment invested by s. 39 (2) of the Judiciary Act. (at p598)

22. Regarding s. 2A as merely denying certain persons in the specified circumstances a right of access to the Supreme Court, it is necessary to consider whether the word "landlord" in the section includes the Crown. There seems to have been some uncertainty as to the true rule of construction to be applied to modern statutes in this connexion. The relevant rule has developed over a period of time and, in my opinion, ought not now to be expressed in terms or with limitations which on occasions may have appeared appropriate in earlier times. In my opinion, the rule to be applied universally as of this time in the construction of statutes, is that the Crown is not included in the operation of a statute unless by express words or by necessary implication. Where the Crown is not expressly mentioned, the implication will be found, if at all, by consideration of the subject matter and of the terms of the particular statute. (at p598)

23. The Crown is not named in s. 2A of the Act. The generality of the word "landlord" is not sufficient to include the Crown unless it can be seen by necessary implication to do so. I can find nothing in the nature or subject matter of the Act or in any of its provisions to support such an implication. Consequently, it is clear, in my opinion, that the Crown is not embraced in the language of s. 2A. This conclusion really removes any necessity to consider the inter se question which arose in the Supreme Court. Section 2A does not limit the State jurisdiction and upon its proper construction does not seek to deny the Crown, including the Crown in right of the Commonwealth, access to the Supreme Court by an action of ejectment. It if had sought to do so in relation to the Commonwealth, it would, in my opinion, have been plainly attempting to do something beyond the power of the State legislature, namely, to determine who should have access to a court invested with federal jurisdiction and, in particular, to determine that the Commonwealth should not have such access where the federal jurisdiction to be exercised was dependent upon the presence of the Commonwealth as a party. (at p599)

24. Before concluding my reasons I should deal with the precise ground upon which the primary judge held he had no jurisdiction. That was that the corporation created by s. 61 of the Lands Acquisition Act which he regarded as the claimant was not the Crown. For this conclusion his Honour relied heavily on the judgment of the Supreme Court of New South Wales in Housing Commission of N.S.W. v. Panayides (1). (at p599)

25. I desire to say two things as to his Honour's reasons. First, as to the identity of the claimant. There is but one juristic entity known as the Commonwealth of Australia. It was called into being by the Constitution. I am unable to comprehend the suggested distinction between this entity and the juristic person, the Commonwealth of Australia, supposedly incorporated, but as I think unnecessarily and with futility, by s. 61 of the Lands Acquisition Act. Also, in my opinion, the Commonwealth of Australia is the Crown in right of the Commonwealth whenever or wherever the Commonwealth acts or is affected in an executive capacity. Even if the analysis put forward in Housing Commission of N.S.W. v. Panayides (1963) 63 SR (NSW) 1; 80 WN 312 were correct as applied to a State corporation representing the Crown, it could not be applied to the Commonwealth of Australia. Consequently, if, as the primary judge apparently thought, s. 2A did not extend to the Crown, he ought to have entertained the action, though upon his view of the efficacy of the notice to quit, he would no doubt have found the claimant not entitled to possession as claimed. (at p599)

26. Second, I should like to add that I do not regard the decision in Housing Commission of N.S.W. v. Panayides (1963) 63 SR (NSW) 1; 80 WN 312 as correct. If a statutory corporation is properly regarded as relevantly acting as the servant or agent of the Crown the immunities of the Crown cannot be denied to it by treating a statute of the same legislature as that which created the corporation which is applied to the Crown would trespass upon its immunities as no more than a statutory reduction of the corporate powers of the corporation. The sole question, in my opinion, in such a case is whether the corporation in relation to the activity with which the statute in question is dealing is the servant or agent of the Crown. Authorities abound which indicate the proper approach to the resolution of that question in the various circumstances with which they were concerned. (at p600)

27. In my opinion, judgment in ejectment should be entered in this Court for the Commonwealth. (at p600)

McTIERNAN J. I agree in the reasons and judgment of the Chief Justice. (at p600)

TAYLOR J. In this matter the initial difficulty arises of identifying the "cause" which has been removed to this Court by force of s. 40A of the Judiciary Act 1903-1965 (Cth). Is it the action in ejectment instituted by the Commonwealth against the respondent or is it constituted solely by the appeal to the Full Court which was subsequently initiated? On the view I have formed concerning the effect of s. 2A (1) of the Landlord and Tenant (Amendment) Act, 1899, as amended (N.S.W.), it is necessary, for reasons which I shall attempt presently to state as briefly as I may, that this problem should be resolved. (at p600)

2. It appears that the "cause", whatever it was, which was removed to this Court was not removed until after the conclusion of the hearing of the action when the learned trial judge purported to return a verdict for the defendant and announced that "there will be judgment for the defendant accordingly". The issues in the action had been tried by the learned judge without a jury presumably pursuant to a consent in form 18 in the First Schedule to the General Rules of the Supreme Court and the provisions of s. 5 of the Supreme Court Procedure Act, 1900 (N.S.W.), applied to the trial. No more precise direction as to the signing or entering of judgment was given by the learned judge (Supreme Court Procedure Act, s. 5 (2) and (3)) and since r.36 of O.XXI provides that,

"Judgment upon a finding for the claimant or the defendant in an action in ejectment . . . shall not be signed until after the expiration of twenty-one days from such finding, except by leave of the Court or a judge",

and an appeal pursuant to s. 5 (6) was instituted within the prescribed time, it can scarcely be doubted the action was not terminated by the entry of judgment. At all events no judgment appears in the appeal book and no suggestion has been made that judgment was entered or that the learned judge gave leave for this to be done at any time within twenty-one days after the conclusion of the hearing. (at p601)

3. The effect of the provisions of s. 5 of the Supreme Court Procedure Act and the scope of the appeal to this Court from a judgment entered pursuant to that section, as contrasted with appeals taken to the Full Court, has recently been the subject of examination in Riley v. Nelson (1965) 119 CLR 131 and in this case it suffices to say that the findings of a judge sitting to determine an issue or issues under that section cannot be made the subject of an appeal direct to this Court; the only process by which they may be reviewed is that provided by the section itself. But the proceedings in this Court are not in the nature of an appeal; the "cause" has been removed into this Court and the case of George Hudson Ltd. v. Australian Timber Workers' Union (1923) 32 CLR 413 is clear authority for the proposition that this Court has jurisdiction to determine the "cause". (at p601)

4. Now what has been removed to this Court by force of s. 40A? That section speaks of a "cause pending in the Supreme Court of a State" and goes on to provide that when in any such cause,

". . . there arises any question as to the limits inter se of the constitutional powers of the Commonwealth and those of any State or States . . . it shall be the duty of the Court to proceed no further in the cause, and the cause shall be by virtue of this Act, and without any order of the High Court, removed to the High Court . . .".

Having regard to the provisions of s. 5 of the Supreme Court Procedure Act and to the observations in Riley v. Nelson (1965) 119 CLR 131 it seems to me that what was pending in the Supreme Court was the original cause notwithstanding the proceedings taken later by way of appeal. No judgment had been entered in the cause and it was awaiting its final determination because of the appeal lodged pursuant to sub-s. (6). But the moment the inter se point arose in the Full Court that Court was stripped of jurisdiction (Lansell v. Lansell (1964) 110 CLR 353 and Reg. v. Green; Ex parte Cheung Cheuk To (1965) 113 CLR 506) and the jurisdiction of this Court to deal with the cause became exclusive pursuant to s. 38A of the Judiciary Act. (at p602)

5. It is true that s. 41 provides that:

"When a cause or part of a cause is removed into the High Court under the provisions of this Act, the High Court shall proceed therein as if the cause had been originally commenced in that Court and as if the same proceedings had been taken in the cause in the High Court as had been taken therein in the Court of the State prior to its removal, but so that all subsequent proceedings shall be according to the course and practice of the High Court. . . ."

But the italicized words, in my view, deal only with matters of procedure and, accordingly, the findings of the learned judge, such as they are, do not preclude this Court, pursuant to s. 32 of the Judiciary Act, from determining the matter on its merits. This proposition, it seems to me, is implicit in the views of the Court in George Hudson Ltd. v. Australian Timber Workers' Union (1923) 32 CLR 413 where the appellant had been convicted by a magistrate prior to the inter se question arising and its appeal had been dismissed by the Full Court subject only to the "reservation" of the inter se question which then arose for the consideration of the High Court. In that case this Court re-examined for itself the substance of the matter. (at p602)

6. Accordingly I am of the opinion that this Court is required by s. 41 to "proceed" in the cause, "as if the cause had been originally commenced" in the High Court and by s. 32 it may,

". . . grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided".

In such circumstances, of course, the defence based upon s. 2A (1) of the Landlord and Tenant Act is of no avail to the respondent. The jurisdiction of the Supreme Court is completely ousted by s. 40A and the jurisdiction of this Court to determine the cause becomes exclusive. However, if I had been of opinion that only the appeal itself had been removed and the question was whether the learned trial judge was right in holding that he had no jurisdiction I would have been disposed to hold that his determination should stand, though not for the reasons which his Honour gave. On the view I have taken, however, of the other matters in the case it is unnecessary that I should state my reasons for such a conclusion but I take the view that s. 2A (1) of the Landlord and Tenant Act, particularly when considered in conjunction with sub-s. (2) (b) of that section, which undoubtedly operates to limit the jurisdiction of District Courts, is a provision which limits the jurisdiction of the Supreme Court and, as a necessary consequence by reason of the ambulatory nature of s. 39 (2) of the Judiciary Act, it effected a corresponding diminution in the invested federal jurisdiction of the Supreme Court which, of course, was invoked in the present action. (at p603)

7. I add that I have no doubt that there was no defect in the notice to quit as alleged by the respondent and that s. 60 of the Lands Acquisition Act 1955-1957 (Cth) did not require that it should be signed by the Attorney-General. On this point I entirely agree with the observations of my brother Owen. I should also add that I do not agree with the learned judge of first instance that s. 61 creates a body corporate which is distinct and separate from the Commonwealth of Australia and that that corporation is not a corporation which represents the Commonwealth. The enactment of such a provision was entirely unnecessary as the Commonwealth itself has a corporate capacity in that the Constitution which established the Commonwealth quite clearly contemplates it as having a capacity to sue and be sued, to hold lands and other property and to bind itself by the making of agreements. (at p603)

8. In the result I agree that an order should be made as proposed by the Chief Justice. (at p603)

MENZIES J. My first task here is to identify the "cause" now said to be before this Court by virtue of s. 40A of the Judiciary Act 1903-1965 (Cth) and to determine whether the Court has jurisdiction to hear and determine that cause. (at p603)

2. In the course of the initial proceedings between the parties in the Supreme Court of New South Wales, viz. the trial of an action of ejectment by the Commonwealth against the present respondent - which was heard with another action - no constitutional question arose and the learned trial judge heard and determined the action in accordance with his view of an unchallenged provision of New South Wales law, viz. s. 2A of the Landlord and Tenant Act, 1899- 1960 (N.S.W.). His Honour concluded his reasons for judgment as follows:

"It therefore appears to me that there should be a verdict for the defendants as the Court has no jurisdiction to entertain the actions and there will be judgment accordingly."

The Court's lack of jurisdiction his Honour attributed to s. 2A, treating it as a section applying to the plaintiff and denying the plaintiff the right to sue. The plaintiff, in his Honour's view, was not the Commonwealth of Australia established by the Commonwealth of Australia Constitution Act but the corporation named in s. 61 of the Lands Acquisition Act. His Honour said:

"Assuming that the corporation, designated 'Commonwealth of Australia', is a statutory body representing the Crown, I find myself unable to distinguish the present case from Housing Commission of N.S.W. v. Panayides (1963) 63 SR (NSW) 1; 80 WN 312. Nothing whatever was shown to turn on the fact that it is here the Crown in right of the Commonwealth and not the Crown in right of the State which is the claimant."

What actually happened in the Supreme Court to carry out his Honour's decision does not appear from the transcript record of proceedings but it is not, I think, to be assumed that the procedure laid down by the Supreme Court Procedure Act was not followed. This provides for the entry of judgment (s. 5, sub-ss. (2) and (3)) and gives an appeal against "any judgment directed by the judge to be entered". The unsuccessful defendant (i.e., the Commonwealth of Australia) instituted an appeal pursuant to s. 5, sub-s. (6), and this appeal came on for hearing in the Court of Appeal Division pursuant to s. 5, sub-s. (7). Had that appeal followed its normal course, the Court of Appeal could have given any judgment or made any order which ought to have been given or made in the first instance (s. 5, sub-s. (9)), that is, if it were of the opinion that the learned trial judge was wrong, it could have directed that judgment for the plaintiff should be entered in the action. However, upon the hearing of the appeal the Solicitor-General for the Commonwealth, in response to the respondent's submission that s. 2A was a complete answer to the Commonwealth's action, impugned the validity of that section, contending that the State had no power to deny to the Commonwealth resort to a State court invested with federal jurisdiction pursuant to the Commonwealth Constitution (s. 77 (iii.)). We have not before us a record of the submissions actually made by counsel for the appellant and respondent, but the Court of Appeal did decide that an inter se question had been raised effecting an automatic transfer of the appeal to this Court pursuant to the Judiciary Act, s. 40A. That decision I accept, for I would regard a challenge by the Commonwealth to the validity of a State law on the ground that it attempts to forbid the Commonwealth from exercising any power derived from the Constitution itself or belonging to it by virtue of its establishment under the Commonwealth of Australia Constitution Act, as clearly raising an inter se question. See Pirrie v. McFarlane (1925) 36 CLR 170 ; and Ex parte Nelson (No. 2) (1929) 42 CLR 258, at pp 270-272 . Furthermore, a submission that a State Act is invalid because it relates to a matter exclusively within Commonwealth legislative power would raise an inter se question: Dennis Hotels Pty. Ltd. v. Victoria (1961) 104 CLR 621, at pp 626, 627 . (at p605)

3. This Court having, therefore, jurisdiction to hear and determine the cause transferred (Judiciary Act, s. 41), the next problem that I face is to identify more exactly the cause which is now in this Court. (at p605)

4. I am satisfied that the cause is the appeal which was instituted in the Supreme Court of New South Wales pursuant to the Supreme Court Procedure Act, s. 5, sub-s. (6), by a notice of appeal asserting that the appeal was against the verdict and judgment for the defendant in the action. Although it is probable that no judgment had in fact been entered in the Supreme Court, there was unquestionably a direction to enter judgment pursuant to s. 5, sub-s. (3), of the Supreme Court Procedure Act and, in giving a direction pursuant to that sub-section, the learned trial judge was exercising the jurisdiction of the Court. That direction or order was appealable upon the merits - as s. 5, sub-s. (7) demonstrates - and the appeal which was duly instituted in the Supreme Court of New South Wales has now been transferred to this Court. We are hearing, therefore, an appeal instituted in the Supreme Court of New South Wales from an order of the Supreme Court transferred to this Court. I would have regarded this as the position before the amendment of the Supreme Court Procedure Act by Act No. 32 of 1965, but it seems to me the amendments then made make it quite clear that before removal to this Court there was in the Court of Appeal when the inter se question arose a true appeal from an order of the Supreme Court of New South Wales. Therefore this Court has power under s. 41 of the Judiciary Act to proceed as if it were hearing an appeal instituted in this Court from an order of the Supreme Court of New South Wales. Having disposed of the important preliminary questions, I turn now to the substance of the appeal. (at p605)

5. It is well established that the effect of s. 40A of the Judiciary Act is to remove to this Court the whole cause, and not merely the inter se question. In the circumstances here, it seems to me a convenient course to consider first the question whether s. 2A of the Landlord and Tenant Act does, upon its proper construction, prevent the Crown in the right of the Commonwealth of Australia from maintaining the action which it commenced. The starting point for considering this question is the well-established rule of statutory construction that the Crown is not bound by a statute except by express mention or necessary intendment. I have found nothing in s. 2A or in its context in the statute to displace this rule. When, therefore, s. 2A prohibits "the landlord" from commencing an action of ejectment in certain circumstances, that prohibition does not apply to the Crown, including the Crown in the right of the Commonwealth of Australia. (at p606)

6. As I have indicated, Brereton J. decided in favour of the defendant because he concluded that the plaintiff was not the Crown in the right of the Commonwealth of Australia but simply a statutory corporation called "the Commonwealth of Australia" constituted by s. 61 of the Commonwealth Lands Acquisition Act. He then approximated this corporation to the Housing Commission of New South Wales and found himself unable to distinguish Housing Commission of N.S.W. v. Panayides (1963) 63 SR (NSW) 1; 80 WN 312 , where it was decided that the Housing Commission was bound by s. 2A. I am satisfied, however, that whatever may have been the purposes of s. 61 of the Lands Acquisition Act, the plaintiff in the action with which we are here concerned was the Crown in the right of the Commonwealth of Australia invoking the invested federal jurisdiction of the Supreme Court of New South Wales conferred, by virtue of s. 77 (iii.) of the Constitution, by s. 39 (2) of the Judiciary Act. To this action s. 2A had no application. (at p606)

7. The foregoing consideration of the problem does take for granted that s. 2A of the Landlord and Tenant Act is what it appears to be, viz., a law prohibiting persons within the description to be found therein from resorting to the jurisdiction of the Court and not a section depriving the Supreme Court of jurisdiction with the consequence that the Commonwealth would have sued in a court without any jurisdiction to entertain its action: cf. Judiciary Act, s. 39 (2). The language of the section follows the usual form of statute imposing some limitation upon persons seeking to bring actions within the jurisdiction of the Court and gives no support to any suggestion that s. 2A is dealing with the jurisdiction of the Court. Furthermore, I consider it would need clear and compelling language to show that the law of a State which could be regarded as having a different and less drastic operation, does operate to deprive the Supreme Court of the State of part of its historic jurisdiction. I am satisfied, therefore, that s. 2A does not limit the jurisdiction of the Supreme Court in ejectment actions. Furthermore, even if, contrary to my view, s. 2A does impose some limitation upon the jurisdiction of the Supreme Court to entertain actions of ejectment, the limitation is not one affecting actions by the Crown because s. 2A, upon its proper construction, does not apply to the Crown. (at p607)

8. For these reasons, I have come to the conclusion that the action brought by the Commonwealth was one within the limits of the jurisdiction of the Supreme Court of New South Wales and that s. 2A of the Landlord and Tenant Act does not, upon its proper construction, purport to prevent the Commonwealth of Australia from commencing an action for ejectment. These conclusions make it unnecessary for me to consider the question of the validity of s. 2A if, upon its proper construction, it did apply to the Crown in the right of the Commonwealth of Australia. (at p607)

9. I agree with the other members of the Court who consider that the learned trial judge was in error in holding that the notice to quit which was given was ineffective. (at p607)

10. For the foregoing reasons, I consider that the appeal should be allowed and that this Court should now direct judgment for the plaintiff in the action in the Supreme Court of New South Wales. (at p607)

OWEN J. The claimant, the Commonwealth of Australia, was the lessor of certain premises in Sydney owned by it and leased to the defendant at a weekly rental of 1 pound 15s. 0d. A notice to quit, signed by an officer of the Department of the Interior, was served upon the defendant. It was signed pursuant to the terms of an instrument published in the Commonwealth Gazette by which the Minister for the Interior, under s. 64 of the Lands Acquisition Act 1955-1957 (Cth), delegated to the officer in question the power to sign for and on behalf of the Commonwealth all notices to quit addressed to tenants of premises owned by the Commonwealth and situated in New South Wales. The defendant failed to comply with the notice to quit and the Commonwealth thereupon commenced an action of ejectment in the Supreme Court of New South Wales. The defendant filed particulars of defence alleging, inter alia, that the lease had not been determined and, in the alternative, that the rental of the premises did not exceed 12 pounds 12s. 0d. per week, that the subject premises included a dwelling house occupied by him and that the Supreme Court was not a court of competent jurisdiction to hear and determine the action. The case was heard by Brereton J. sitting without a jury under s. 3 of the Supreme Court Procedure Act, 1900-1965 (N.S.W.) and two contentions appear to have been raised by the defendant. One was that the notice to quit was invalid because it was not signed by the Attorney-General for the Commonwealth or his delegate and this contention was accepted by the learned judge. He went on, however, to deal with the second submission which was based upon s. 2A of the Landlord and Tenant Act, 1899-1965 (N.S.W.), a section introduced into that Act in 1960. It provides that:

"(1) No action of ejectment in the Supreme Court or a District Court, or proceedings under section seventeen of this Act, for the recovery of any land or premises or part of any land or premises from the tenant or any person claiming under him who is actually occupying such land or premises or part shall be commenced by the landlord if there is situated on the land, or the premises are or include, a dwelling-house and -

(a) where the term or interest of such tenant or person has not expired or been determined, if - (i) such tenant or person is liable to the payment of rent; and

(ii) such rent does not exceed twelve pounds twelve shillings per week, or an equivalent sum calculated in respect of any other period; or

(b) where the term or interest of such tenant or person has expired or been determined, if - (i) such tenant or person was immediately before the expiration or determination of such term or interest liable to the payment of rent; and

(ii) such rent did not immediately before such expiration or determination exceed twelve pounds twelve shillings per week, or an equivalent sum calculated in respect of any other period.

(2) In any case where by reason only of the provisions of subsection one of this section a landlord is precluded from commencing any action or proceedings, referred to in that subsection, he may take proceedings under Part IV of this Act for the recovery of possession of the land or premises concerned and the provisions of that Part shall where applicable apply, mutatis mutandis, to any such proceedings."

His Honour was of opinion that the claimant was not the Commonwealth of Australia, the juristic entity created by the Constitution, but was another and different corporate body of that name constituted by s. 61 of the Commonwealth Lands Acquisition Act which provides that:

"For the purposes of acquiring, holding and disposing of land (including land outside Australia) and for all purposes of this Act, the Commonwealth is a body corporate, by the name of 'The Commonwealth of Australia'."

This corporate entity was, he considered, the owner and lessor of the premises and was not an instrumentality of the Crown in right of the Commonwealth. But if it was such an instrumentality his Honour was of opinion that the action was not maintainable because s. 2A (1) of the Landlord and Tenant Act, 1899 deprived the Supreme Court of jurisdiction to entertain it. This, he thought, followed from the decision of the Supreme Court in Housing Commission of N.S.W. v. Panayides (1963) SR (NSW) 1; 80 WN 312 , in which it had been held that the Housing Commission, a body incorporated under the laws of New South Wales, was bound by s. 2A (1) whether or not it was a body representing the Crown in right of the State since its capacity to sue was controlled by the laws of the State. In the result the learned judge said that there should be a verdict for the defendant "as the Court has no jurisdiction" and ordered that there should "be judgment accordingly". (at p609)

2. It does not appear from the record that any question was raised before his Honour as to the validity of s. 2A (1) if, on its true construction, it purported to prevent the Commonwealth or an instrumentality of the Commonwealth from taking proceedings in a court invested with federal jurisdiction to try an action brought by the Commonwealth. (at p609)

3. The claimant appealed to the Full Supreme Court. Section 5 (5) and (6) of the Supreme Court Procedure Act speaks of an appeal against a "judgment" directed to be entered under the section but by s. 5 (7) the appeal is a rehearing of the action and it is plain that the whole of the proceedings from which what is described as the "appeal" is brought is open to review. In fact in the present case no judgment was entered pursuant to the order made by Brereton J. for the reason no doubt that an appeal had been instituted within the time prescribed by O. XXII, r. 1 of the General Rules of the Supreme Court and that by O. XXI, r. 36 of those Rules judgment could not be signed without the leave of the Court or of a judge until after the expiration of twenty-one days from the date when the direction to enter judgment was given. When the matter came before the Full Court a number of submissions were outlined by counsel for the claimant. One of them was that, on its true construction, s. 2A (1) of the Landlord and Tenant Act did not debar the Commonwealth from maintaining the action but that, if it purported to do so, it was beyond power. For the reasons which have been given by the Chief Justice I am of opinion that this last contention raised an inter se question and, by virtue of s. 40A of the Judiciary Act, the "cause pending" in the Supreme Court was thereupon removed into this Court and the Supreme Court ceased to have jurisdiction to deal with it. Since no judgment had been entered in the action following the proceedings before Brereton J. and having regard to the provisions of s. 5 of the Supreme Court Procedure Act and particularly to sub-s. (7) of that section, the "cause pending" in the Supreme Court when the inter se question arose seems to me to have been the whole action. Section 41 of the Judiciary Act requires us to proceed as if the cause had been originally commenced in the High Court and as if the same proceedings had been taken in the cause in this Court as had been taken in the Supreme Court prior to its removal. In the result, therefore, I think we are required to proceed as if, in an action of ejectment commenced by the Commonwealth in this Court, the defences raised in the Supreme Court had been pleaded, an order made directing judgment to be entered for the defendant and an appeal by way of rehearing instituted against that order. The cause removed by the operation of s. 40A of the Judiciary Act comes, however, before this Court in its original jurisdiction and, by s. 32 of the Judiciary Act, it is our duty to grant the remedies to which the parties are entitled. (at p610)

4. I turn then to consider the matters raised by way of defence to the action. Dealing first with the defence based upon s. 2A (1) of the Landlord and Tenant Act, it seems to me to be clear that it affords no answer to the action since the section has no application to an action of ejectment brought by the Commonwealth in this Court. The section is directed only to proceedings in the Supreme Court or a District Court. In these circumstances it is unnecessary to consider whether on its true construction it operates to deprive the Supreme Court of jurisdiction or merely provides a defendant to proceedings in that Court with a defence in a case falling within its terms. (at p610)

5. The remaining question is whether the notice to quit was defective because it was signed by the delegate of the Minister for the Interior. It is rightly conceded that that Minister was at all relevant times the Minister of State charged, inter alia, with the administration of the Lands Acquisition Act, the management of Commonwealth property, the aquisition and leasing of land for Commonwealth purposes, except in relation to the Northern Territory, and the disposal by lease or otherwise of land vested in the Commonwealth subject to the limitations imposed by s. 53 of the Lands Acquisition Act which have no application to the present case. Prima facie, therefore, the Minister or his delegate was the appropriate person to give the notice to quit. It was contended, however, that by reason of s. 60 of the Lands Acquisition Act which provides that:

"All instruments, receipts and documents relating to the acquisition of land or to land vested, or which has been vested, in the Commonwealth may be executed by the Attorney-General for and on behalf of the Commonwealth.",

the only person who could sign the notice was the Attorney-General. I do not agree that this is so. Section 60 is permissive and not imperative in its terms and does not require that the instruments, receipts and documents to which the section refers must be executed by the Attorney-General. I should add that neither party before us sought to maintain the proposition that by reason of s. 61 of the Lands Acquisition Act the claimant, the Commonwealth of Australia, was a different juristic entity from the Commonwealth of Australia established by the Constitution and, with all respect to Brereton J., I think he fell into error in so deciding. (at p611)

6. In the result I am of opinion that the claimant is entitled to judgment in ejectment in this Court. (at p611)

Orders

Declare that since the third day of March 1965 the Commonwealth of Australia has been entitled to the possession of all that piece of land known as No. 107 Woolwich Road, Woolwich, in the State of New South Wales.

Order that the Commonwealth of Australia recover possession of the said land.

Order that the defendant pay to the Commonwealth of Australia the costs of this action, the costs in respect of the proceedings heard in the Supreme Court of New South Wales according to the scale of costs appropriate thereto and the costs in respect of the proceedings in this Court according to the rules of this Court.