Between: MATHIESON
And: BURTON

Judges: Barwick CJ
McTiernan J
Menzies J
Windeyer J

Gibbs J

Subject References:
Leases and tenancies
Prescribed premises
Death of lessee
Statutory right of adult child resident to continue possession
Whether repeal

Legislative References:
Landlord and Tenant (Amendment) Act 1948 (NSW) - s 83A(1)(b)

MELBOURNE

Judgment by:
GIBBS J

The appellant on 30th April 1969 commenced an action of ejectment in the Supreme Court of New South Wales to recover possession of premises at Auburn of which he is the owner. The writ was directed to the respondent Mary Iris Burton and to her husband who is now deceased. The respondent entered an appearance to the writ and filed particulars of her defence. The appellant thereupon applied by summons to a judge of the Supreme Court of New South Wales for an order that the respondent's appearance and particulars of defence be struck out and that the appellant be given leave to sign judgment for the recovery of the premises. The learned judge ordered that the summons be dismissed and this appeal is brought by special leave from his order.

The facts were not in contest. The respondent is the daughter of one Patrick Edmond O'Brien who at his death was the lessee of the premises in question which are "prescribed premises" within the meaning of the Landlord and Tenant (Amendment) Act, 1948 (N.S.W.), as amended ("the Act"). The respondent (who was then over the age of twenty-one years) resided with her father immediately before his death and was actually in possession of the premises immediately after his death. Patrick Edmond O'Brien was a widower and no child of his other than the respondent was residing with him immediately before his death. No grant has been made of probate or letters of administration of his estate.

It is not disputed that, in these circumstances, after the death of Patrick Edmond O'Brien (which occurred on 14th September 1958), and until the passing of the Landlord and Tenant (Amendment) Act, 1968 (N.S.W.) ("the Act of 1968") the respondent had the like right to continue in possession of the premises as her father would have had if he had not died or that the appellant could only have recovered possession of the premises from her by giving notice to quit in accordance with s. 62 of the Act and then taking proceedings in a court of competent jurisdiction, i.e. a court of petty sessions constituted by a stipendiary magistrate: s. 69 of the Act. This result was brought about by s. 83A of the Act whose material provisions at 14th September 1958 read as follows:

"(1)

Where a lessee of prescribed premises dies, and

(a)

the spouse of the lessee resided with the lessee immediately before the death of the lessee and is actually in possession of the premises immediately after the death of the lessee; or

(b)

where the spouse of the lessee was not so residing or is not so in possession or the lessee was not married at the date of his death, a child of the lessee (being a child of or over the age of twenty-one years) so resided and is so in possession,

such spouse or child, as the case may be, shall, subject to subsection two of this section and until probate or letters of administration of the estate of the deceased lessee are granted, have the like right to continue in possession of the premises as the deceased lessee would have had if he had not died.

In this subsection `child of the lessee' means, where more than one child of the lessee so resided and is so in possession, the elder or eldest of such children.

(2)

Proceedings may be taken against such spouse or child, as the case may be, ... for the recovery of possession of the premises from him in accordance with the provisions of this Act as if he were a lessee of the premises."

By the Landlord and Tenant (Amendment) Act, 1964 (N.S.W.), s. 83A was amended so as to expand the class of persons entitled to the protection of the section. The form of pars. (a) and (b) of sub-s. (1) was altered but their substance remained the same. New paragraphs were added to sub-s. (1) to bring within the section brothers and sisters and parents (par. (c)) and "any other person" (other than a lodger or boarder) who had resided with the lessee for not less than two years immediately before his death (par. (d)). None of these amendments in any way affected the position of the parties to this appeal.

However the section was further amended by s. 4 (h) of the Act of 1968. The policy of the legislature had changed and the class of persons benefited by the section was contracted. The protection given to brothers and sisters and to "any other person" was removed entirely by the omission of words from par. (c) and the complete omission of par. (d). Moreover, par. (b) was amended by inserting words which confine the operation of that paragraph to a child who at the date of the lessee's death was a protected person or was in receipt of a pension under the Social Services Consolidation Act 1947 (Cth), as amended. Since that amendment, s. 83A (1), (1A) and (2) read as follows:

"(1)

Where a lessee of prescribed premises dies, and

(a)

the wife or husband of the lessee resided with the lessee immediately before the death of the lessee and is actually in possession of the premises immediately after the death of the lessee;

(b)

where the wife or husband of the lessee was not so residing or is not so in possession or the lessee was not married at the date of his death, a child of the lessee (being a child of or over the age of twenty-one years who, at the date of the lessee's death was a protected person or was in receipt of a pension under the Social Services Consolidation Act 1947 (as amended by subsequent Acts) of the Parliament of the Commonwealth) so resided and is so in possession; or

(c)

where no person referred to in paragraph (a) or (b) of this subsection was so residing or is so in possession, the father or mother of the lessee so resided and is so in possession;

the wife or husband, or such child, or the father or mother shall, subject to subsection two of this section and until probate or letters of administration of the estate of the deceased lessee are granted, have the like right to continue in possession of the premises as the deceased lessee would have had if he had not died.

(1A)

Where but for this subsection more than one person would, under paragraph (b) or (c) of subsection one of this section, have had a right to continue in possession of any premises, the elder or eldest of the persons so entitled under such paragraph shall have that right to the exclusion of any other of those persons.

(2)

Proceedings may be taken against the person having the right under subsection one of this section to continue in possession of the premises for the recovery of possession of the premises from him or her in accordance with the provisions of this Act as if he or she were a lessee of the premises".

It seems to be common ground that the respondent at the date of her father's death was neither a protected person nor in receipt of a pension of the kind now referred to in par. (b) and it is accepted by the parties that if her father had died after the Act of 1968 had come into operation she would not have acquired under s. 83A any right to continue in possession of the premises. The question is, however, whether she retains the rights to continue in possession which she had from the date of her father's death until the enactment of the Act of 1968, so that the present action of ejectment must fail, notwithstanding that it was instituted after the latter Act had come into operation.

A similar question was considered by the Court of Appeal of the Supreme Court of New South Wales in Boyce v Hughes. ^[F27] In that case the plaintiff had lived as man and wife with a woman who was the tenant of the dwelling house in which they resided and after the death of the tenant in 1967 continued to reside in the house. It was held that the right to continue in possession of the premises which the plaintiff enjoyed after the death of the tenant was not affected by the Act of 1968. It was assumed that the latter Act effected a repeal of s. 83A (1) (d) and the question in the case, which the Court of Appeal answered in the affirmative, was whether the plaintiff had a right which had been acquired by him or had accrued to him within s. 8 (b) of the Interpretation Act of 1897 (N.S.W.). The appellant conceded before the learned primary judge in the present case that Boyce v Hughes ^[F28] bound the learned judge to dismiss the application but now contends that the decision was erroneous.

In my opinion, however, the reasoning of Boyce v Hughes ^[F29] is not applicable to the present case, although, for the reasons I shall give, I regard that case as correctly decided. Section 8 (b) of the Interpretation Act of 1897 (N.S.W.) provides as follows:

"Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not- (b) affect any right, privilege, obligation, or liability acquired, accrued, or incurred, under an enactment so repealed."

Like s. 38 (2) (c) of the Interpretation Act, 1889 (U.K.) on which it is modelled, and unlike the corresponding provisions of the statutes of some other States (e.g. s. 7 (2) of the Acts Interpretation Act 1958 (Vic.) and s. 20 (1) of the Acts Interpretation Act of 1954 (Qld.)), s. 8 (b) is not expressed to extend to the case where an Act amends a former Act. The assumption made in Boyce v Hughes ^[F30] that the Act of 1968 repealed s. 83A (1) (d) appears to have been rightly made, for the provision that s. 83A be amended by omitting par. (d) of sub-s. (1) amounted in substance to a repeal of that paragraph. The present case, however, arises not under par. (d) but under par. (b) of s. 83A (1) and the amendment to par. (b) consisted not of its omission in whole or in part but simply of the insertion of some additional words. This was not, in my opinion, a repeal of par. (b) within the meaning of s. 8 (b) of the Interpretation Act of 1897 (N.S.W.).

In Beaumont v Yeomans, ^[F31] Jordan C.J. said:

"Whether an Act has been repealed or amended is a matter of substance and not one of form only. One Act may purport to amend another by repealing part of it. On the other hand, an amendment may be effected either by the addition to a section of a particular phrase, or by the repeal of the section and the substitution of the same words with the phrase added. ... And where a provision of an Act is repealed and re-enacted in a form which enlarges its scope, this has been construed as amounting in substance to an amendment, because the new provision has been regarded as intended to be retrospective so far as it is mere repetition, and prospective so far as it is new: Ex parte Todd." ^[F32]

The case cited by his Honour, Ex parte Todd; In re Ashcroft, ^[F33] decided that a section which re-enacted, with additions, the provisions of a section of a repealed Act was retrospective in so far as it was a re-enactment of the earlier section but it was not expressly held that the latter section amounted in substance to an amendment of the earlier. The view that the omission of a statutory provision and its re-enactment in altered form may amount in substance to an amendment rather than a repeal was taken by some of the members of this Court in Bird v John Sharp and Sons Pty Ltd ^[F34] although Latham C.J. ^[F35] and Williams J. ^[F36] were of a different opinion. On the other hand it was held in Ku-ring-gai Municipal Council v Attorney-General (N.S.W.), ^[F37] that s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) "applies as much to a repeal to make way for a substitutional provision as to a simple repeal"; ^[F38] see also ^[F39] ). It is unnecessary in the present case to resolve this conflict of opinion (which is reflected in the State Supreme Courts: see Doro v Victorian Railways Commissioners ^[F40] and Lewis v French ^[F41] ). Whether or not the judgment of Jordan C.J. requires qualification in other respects, it was correct in suggesting that the addition of words to a section is an amendment rather than a repeal. In my opinion, where a later statute provides for the addition of particular words to an earlier section, which otherwise remains unaffected, the earlier section is thereby amended but cannot be said to have been repealed within s. 8 (b). It is true that there are some dicta to the contrary. In Moakes v Blackwell Colliery Company Ltd, ^[F42] Scrutton L.J. expressed the view that "when an Act of Parliament not using the word `repealed' contains a provision which alters the provisions of a previous Act in repeals that provision", and that the Interpretation Act, 1889 (U.K.) would apply to such a case. However the other members of the Court of Appeal do not appear to have decided that the Interpretation Act would be applicable in those circumstances and Sargant L.J. expressly said ^[F43] that the same conclusion would be reached in the case before the court whether one applied the Interpretation Act or the general principles of construction. In Briggs v Thomas Dryden and Sons, ^[F44] Pollock M.R. said that s. 38 (c) of the Interpretation Act, 1889 (U.K.) applied to all Acts which "modify or repeal" previous Acts but his words must be understood as having reference to the case before him in which the new Act had in terms repealed part of the old and had substituted a new provision for that repealed, or in other words to a situation similar to that considered in Ku-ring-gai Municipal Council v Attorney-General (N.S.W.). ^[F45] On the other hand, in Glaholm v Barker, ^[F46] Turner L.J. was clearly of the opinion that the modification of a section by a later statutory provision was a different thing from the repeal of the section (see) ^[F47] and in Director of Public Prosecutions v Lamb, ^[F48] Tucker J. does not appear to have acceded to the view that the amendment of a provision by adding words to it is equivalent to a repeal. Perhaps this question has not been more conclusively discussed because in many cases the result will be the same whether one regards a provision as effecting a repeal and applies the provisions of the appropriate Interpretation Act or as an amendment which is governed by the general principles of the common law that are designed to avoid giving a retrospective effect to a statutory enactment. Notwithstanding the dicta of Scrutton L.J. which are, of course, entitled to great respect, I am unable to agree that a section to which words are added and which remains in force in its amended form can rightly be said to be repealed. This question in the present case, however, is not a crucial one. It would, indeed, be surprising if some of the amendments effected by s. 4 (h) of the Act of 1968 were held to affect existing rights acquired under s. 83A (1) and others were held not to have that effect because some of those amendments were regarded as in substance amounting to a repeal and others were not so regarded. In my opinion, however, whether the provisions of s. 4 (h), in so far as they affect s. 83A (1) (b), are regarded as repealing that paragraph and thus invoking s. 8 (b) of the Interpretation Act of 1897 (N.S.W.), or as amending it and thus calling for the application of the common law rules, the same result will be reached.

The common law principles have been laid down in many cases, but it is necessary to refer only to two well-known authorities. In In re Athlumney; Ex parte Wilson, ^[F49] Wright J. said:

"Perhaps no rule of construction is more firmly established than this-that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."

In Maxwell v Murphy, ^[F50] Dixon C.J. said:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption."

In my opinion when the Act of 1968 was passed the respondent had an existing right to continue in possession of the subject premises. That right had arisen out of, and had been defined by, reference to, facts that had occurred before the Act of 1968 was passed. On behalf of the appellant it was submitted that the so-called right was in truth merely an immunity or protection from eviction which endured only so long as the statutory provision creating it remained in force. With all respect, this submission gives insufficient force to the words of s. 83A (1); that subsection purports to create and confer a right of the same kind as the lessee would have had if he had lived and I can see no justification for ignoring these words and refusing to recognize as a right that which the legislature has expressly described as such. It is true that the right was both personal and temporary-it was not capable of assignment and endured only until representation of the estate of the deceased lessee should be granted or until a court of competent jurisdiction should make an order putting the respondent out of possession: cf. Druitt v Crawford ^[F51] and Condren v Condren. ^[F52] However, to say, in the words of Sugerman P. in Boyce v Hughes, ^[F53] that the right "is of a qualified, limited and transitory nature" is to define or explain the nature of the right but is not to deny its existence.

The presumption of the common law is that this right, having been acquired, should not be affected by the provisions of s. 4 (h) of the Act of 1968 which clearly dealt with matters of substantive law and not with matters of procedure. The same presumption would arise if s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) applied. That section in referring to a right acquired or accrued does not preserve a power to take advantage of an enactment, assuming that that may properly be described as a right (Abbott v The Minister for Lands ^[F54] ), and does not apply where there is merely a hope or expectation that a right will be created (Director of Public Works v Ho Po Sang ^[F55] ); but it does protect anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" (Free Lanka Insurance Co Ltd v Ranasinghe ^[F56] ). In Hamilton Gell v White, ^[F57] Atkin L.J. said that s. 38 of the Interpretation Act, 1889 (U.K.) "was not intended to preserve the abstract rights conferred by the repealed Act" and "only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute". In the present case, before the Act of 1968 was passed, all the events specified in s. 83A (1) (b) had occurred, nothing more remained to be done to make effective the right described in s. 83A (1) and the respondent had acquired a right under that subsection which would, therefore, be saved by s. 8 (b) of the Interpretation Act of 1897 (N.S.W.) if this were the case of a repeal rather than an amendment. The appellant places some reliance on the decision of the Court of Appeal in Boddington v Wisson. ^[F58] In that case a paragraph in a regulation provided that in certain circumstances a notice to quit an agricultural holding should be "null and void", but it was further provided that this paragraph should not apply to any notice if (whether before or after the giving thereof) the Minister consented in writing thereto. A landlord served a notice to quit but did not apply to the Minister for his consent. After the notice was served but before it had expired the regulation was repealed. It was held that s. 38 (c) of the Interpretation Act, 1889 (U.K.) (as applied to the regulations) had no application because the tenant's protection under the regulation could not fairly be described as a "right" or "privilege", and the limitation of the landlord's right could not fairly be described as an "obligation" or "liability", within par. (c). ^[F59] The decision depended on the view that the regulation, although it used the words "null and void", did not render a notice to quit wholly nugatory and ineffective and that, notwithstanding that the Minister had not consented, the notice was in force, although it was only conditionally enforceable. ^[F60] The case was not one in which a tenant was given a right, even of a qualified kind, to possession, and is quite distinguishable from cases arising under s. 83A (1).

The question then arises whether an intention is disclosed by the provisions of the Act of 1968 to terminate existing rights acquired under s. 83A (1), except in cases where the persons having those rights would have been eligible to acquire them under the provisions of the amending Act. In my opinion there is nothing in the amending provisions to indicate any intention to affect existing rights. Section 83A (1) both in its original and in its amended form commences with the words "where a lessee of prescribed premises dies". These words appear to me plainly enough to be referring to a death in the future, so that the provisions of s. 83A, when first inserted in the Act by the Landlord and Tenant (Amendment) Act, 1952 (N.S.W.), referred to a death occurring after the latter Act took effect, and the provisions in their present amended form speak of a death after the enactment of the Act of 1968. This view is supported by the fact that the section confers the right only on ( inter alios ) a child who "is" in possession of the premises. On behalf of the appellant it is said that s. 83A (1) (b) uses the past tense in the expressions "was not so residing" and "so resided", but plainly these words were used because the legislature is referring to a situation which, regarded as at a date in the future, had occurred in the past, and they do not weaken the conclusion that the section only applies where a lessee dies after its enactment. So far from rebutting the presumption that the amendment does not affect existing rights, the words of the section seem to me to support it.

On behalf of the appellant it is submitted that the Act of 1968 shows a general intention to strengthen the hands of landlords and to narrow the area of protection available to persons in possession of prescribed premises. That this is so may explain why the Act was passed, but it does not assist in deciding whether it was intended that the making of the amendments should affect existing rights.

Finally, on behalf of the appellant, it is submitted that the provisions of s. 83A (2) provide an indication that it was the intention of the legislature that a right to continue in possession under that section will only exist if the person who claims it satisfies the requirements of sub-s. (1) in their amended form. Subsection (2) provides that proceedings may be taken against "the person having the right under subsection one of this section to continue in possession" and it is submitted that, since the amendment of sub-s. (1) in 1968, sub-s. (2) enables proceedings to be taken only against a person whose right to continue in possession is based on sub-s. (1) in its amended form, and provides no means of proceeding against a person who acquired a right to continue in possession under sub-s. (1) in its previous form. Therefore, it is said, it cannot have been intended to preserve existing rights in persons from whom a landlord could never recover possession. In my opinion, this submission cannot be maintained. Since the Act of 1968, sub-s. (1) continues to apply in its unamended form to facts which occurred before its amendment took effect and applies in its amended form to facts occurring subsequently. A person who acquired a right under sub-s. (1) in its unamended form, and who retains that right, is just as much a person "having the right under subsection one of this section to continue in possession" as is a person who acquired his right under the amended subsection. Even where a right was acquired under par. (d) of sub-s. (1), which has been repealed, and that right is preserved by s. 8 (b) of the Interpretation Act of 1897 (N.S.W.), the description in sub-s. (2) remains applicable. The words "under subsection one of this section" are words descriptive of the right to which sub-s. (2) refers and in using them the legislature intended to refer to a right which arose under sub-s. (1) even if it arose under part of that subsection which has since been repealed or amended. In this regard it may be added (with great respect to the different opinion expressed in Te Kloot v Te Kloot ^[F61] and Australian Iron & Steel Ltd v Hoogland ^[F62] ) that the weight of authority favours the view that it is permissible to have regard to a repealed portion of an Act for the purpose of construing what remains: see Attorney-General v Lamplough; ^[F63] Re Donaldson; ^[F64] Roberts v Collector of Imposts; ^[F65] London and West Australian Exploration Co Ltd v Ricci; ^[F66] R. v Foster Ex parte Gillies; ^[F67] Chapman v Kirke. ^[F68] In determining the meaning of the words "the person having the right under subsection one of this section to continue in possession" one may therefore look at sub-s. (1) in the form which it had at the time when the alleged right in question is said to have arisen.

For the reasons I have given I hold that on the facts stated the respondent, until representation of the estate of her father is granted, has the right given by s. 83A (1) of the Act to continue in possession of the premises and that the appellant may only recover possession of the premises from her by proceedings in a court of competent jurisdiction taken in accordance with the Act and cannot successfully bring an action of ejectment in the Supreme Court. It follows that the application was rightly dismissed.

I would dismiss the appeal.