Mathieson v Burton
124 CLR 1(Decision by: WINDEYER J)
Between: MATHIESON
And: BURTON
Judges:
Barwick CJ
McTiernan J
Menzies J
Windeyer JGibbs 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)
Judgment date: 4 March 1971
MELBOURNE
Decision by:
WINDEYER J
This case turns upon the effect of the Landlord and Tenant (Amendment) Act, 1968 (N.S.W.)-one of a series of complicated enactments that, beginning in 1948, have, in various ways and from time to time, amended the tenancy law of New South Wales. And this is another instance of legislatures amending statute law without expressly either saving or abrogating the consequences of prior events. Today draftsmen do not ordinarily insert saving clauses in bills. When a statute repeals an earlier enactment, the general provisions of the Interpretation Acts are assumed to be sufficient to limit the operation of the new Act and to prevent the disturbance of past transactions and accrued rights. Yet this parliamentary parsimony can create problems, costly for citizens and troublesome for courts. In this Court we recently had occasion to remark on this: and the observations were endorsed by their Lordships in the Privy Council: Ogden Industries Pty Ltd v Lucas. [F5] However, the question now before us is not answered by repeating reproaches. We are not here to give lessons to legislators as to the words they might have used, but to spell out, as best we can, the intention expressed by the words that they have used.
By virtue of s. 83A (1) of the Landlord and Tenant (Amendment) Act, 1948-1958 (N.S.W.), the respondent, when her father, the lessee of the subject premises, died had, in the words of that section, "the like right to continue in possession of the premises as the deceased lessee would have had if he had not died". This entitlement, which began upon the lessee's death, would endure until probate of a will or letters of administration of his estate was granted. There has been as yet no such grant of probate or letters of administration.
Section 83A was a new section added, by Act No. 55 of 1952 s. 3 (e), to the statute governing the relations of landlord and tenant. It was amended in 1964, to enlarge the classes of persons entitled to its benefits, and in other ways. These amendments did not touch the respondent. But in 1968 came a further amendment, dictated by a new policy. This time the persons who could claim the benefit of the section were not increased. They were reduced. The respondent does not come within the restricted class of children of a deceased lessee who, since 1968, are entitled to the like right that he would have had if he had lived. Did this 1968 amending Act destroy or disturb rights created by s. 83A (1) as it had previously stood, and which were still subsisting on 13th December 1968, when the new Act came into force? I think not. The question is one of statutory construction and of the effect of the Interpretation Act of 1897 (N.S.W.). As I regard the Interpretation Act s. 8 as the firm base from which I proceed, I shall turn first to it. So far as immediately relevant it is as follows:
"8. Where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not-
- (a)
- affect the previous operation of an enactment so repealed, or anything duly suffered, done, or commenced to be done under an enactment so repealed; or
- (b)
- affect any right, privilege, obligation, or liability acquired, accrued, or incurred under an enactment so repealed."
It was contended for the appellant that these provisions were not applicable, because, it was said, the alteration that the 1968 Act made in s. 83A (1) par. (b)-the paragraph under which the respondent acquired the right she relies upon-was not covered by the introductory words of s. 8 "where an Act repeals in the whole or in part a former Act". It was said that the 1968 Act 0effected an amendment not a repeal. I cannot accept that proposition or the distinction supposed. The words "an Act which repeals in the whole or in part a former Act" in s. 8 of the New South Wales Interpretation Act have, in my view, the same effect as that which in the United Kingdom Interpretation Act, 1889, s. 38 (2) is expressed by the words "where any Act repeals any other enactment". English cases are thus in point. That is because an enactment may mean either a statute as a whole or any provision of a statute. Every section of an Act takes effect as a substantive enactment. Interpretation Acts commonly so provide. In New South Wales it has been so since 1852: Acts Shortening Act, 16 Vict. No. 1. And, as I understand it, if an enactment radically alters the effect of an earlier enactment so that the two cannot stand together, it amounts to a repeal by implication of that earlier enactment. In Victoria the Acts Interpretation Act 1958 does not-in s. 7 (2), corresponding to s. 8 of the New South Wales Act-speak of an "Act which repeals in the whole or in part any other Act". Its words are "where any Act repeals or amends any other enactment". This difference of verbiage is interesting, but in my opinion is not significant. It cannot, I think, be invoked to support a notion that s. 8 of the New South Wales Interpretation Act and s. 8 of the Acts Interpretation Act 1901-1966 (Cth)-which are in the same terms-apply only to express repeals and not to implied repeals resulting from amendments. For some purposes it may sometimes be relevant to distinguish between a repeal and an amendment, or a modification, as the latter is sometimes called. But an amendment which permanently reduces the ambit of any of the provisions of an Act involves a repeal of it in part. That is because after the amendment the statute no longer operates as it formerly did: and the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied; or by its expiry in the case of a temporary statute; or by something that was made a condition of its continued operation coming to an end. An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say "in part". Provisions of a later Act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them. That has been recognized in this Court since its early days: see Goodwin v Phillips. [F6] An amendment of that kind operates to simultaneously repeal an old enactment and put a new one in its place. That seems to me to be the result of parliamentary legislation according to the theory of our law. It is a result not to be obscured by merely literal refinements or made to depend on the use of particular legislative formulae. As Dixon C.J., McTiernan and Taylor JJ. observed in Ku-ring-gai Municipal Council v Attorney-General (N.S.W.), [F7] the form of an amendment may bring out the fact that it is at once an abrogation of an old provision and the introduction of a new one. What counts in determining whether an enactment involves a repeal of earlier legislation is the substantial effect it produces, not the linguistic method by which it produces it. Expressly to omit the old and insert the new is one manner of amendment. But the same result may flow from other legislative forms; for old provisions must always be in effect removed if they are to make room for new. In the present case the alteration in 1968 of par. (b) of s. 83A (1) was accomplished by simply adding words to the existing provision. But this radically changed its effect. The former paragraph was in the result displaced by a new and different provision.
That the provisions similar to s. 8 of the Interpretation Act are as applicable in the case of an amendment effecting a repeal by implication as in the case of an express repeal has been recognized in many cases: what Lindley L.J. said in Heston and Isleworth Urban District Council v Grout [F8] is in point. And in Moakes v Blackwell Colliery Co Ltd [F9] Scrutton L.J. said: "Now it appears to me that when an Act of Parliament not using the word `repealed' contains a provision which alters the provisions of a previous Act it repeals that provision." And Pollock M.R. said that s. 38 (2) of the Interpretation Act, 1889 (U.K.) was applicable in such a case, when in Briggs v Thomas Dryden & Sons. Talbot v Vickers Ltd, [F10] he spoke of it as "a provision intended to apply to all Acts which modify or repeal previous Acts". He did not suggest that, in considering the effect of it, there was any relevant distinction between a modification by amendment and an express repeal.
Of course if the effect of an amendment be only to extend the duration of an Act was that due to expire, or to extend the territorial locality in which it should operate, or to add to the persons who might claim its benefits or become subject to its obligations, then, in one sense, no repeal is involved. The Act's existing operation in respect of time, place and people is enlarged, not curtailed. It is simply extended for further time, to a new place, or in respect of new people, without its previous effect being in any way abrogated. For that reason Jordan C.J. said that an enlarging amendment of that sort was not a repeal: see Beaumont v Yeomans. [F11] In Ex parte Barker; Re Luckett [F12] his Honour said of an amendment, thus distinguished from a repeal, that "it adds something, but subtracts nothing". That is a convenient distinction, although in a philosophical sense any addition to the operation of a statute making it applicable to new persons, new places or at further times involves an alteration of its previous limits; and is thus a repeal of provisions that were implicit. For example, the continuance of a temporary Act involves an abrogation of an implied stipulation that it was not to operate beyond a date certain. Nevertheless, alterations in the nature of extensions are not usually called repeals. They leave previous obligations and rights unaffected without the aid of any saving clause or Interpretation Act. But the amendment of s. 83A (1) (b) that was made in 1968 by the addition of words to that paragraph gave it thereafter a lesser, not a greater, denotation; and that meant that its earlier wider denotation was pro tanto repealed. To adopt and adapt the phrase used by Jordan C.J. that I have quoted: The scope of the Act had been reduced by a subtraction, not enlarged by addition. The provision continued to be operative, but as from the date of the amendment in its amended form. The respondent did not contest this. Her case is simply that the earlier law was in force when her father died: it has since been repealed, but not so as to affect its previous operation or the right she had acquired under it.
The appellant's next proposition was that, assuming s. 8 of the Interpretation Act to be applicable, yet the respondent got nothing by it as, it was said, the consequences for her that had resulted from s. 83A (1) (b) as it formerly stood were not a "right" or "privilege" "acquired or accrued" within the meaning of s. 8. I thought this proposition startling. We are not engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics to Hohfeld. It was said that s. 83A (1) created immunities not rights. But I fail to see why an immunity, or exemption from legal consequences, should not be called a right or privilege once it has taken effect and is not merely inchoate. Before 1968 the respondent had "the like right" to continue in possession of the premises as her father had had. But, says the appellant, what was thus called a right was not really a right. On this view, Dixon C.J. ought not-in Arnold v Mann [F13] - to have described the position of a statutory tenant as a "personal right"; and I must have misused many words in what I wrote in Chelsea Investments Pty Ltd v Federal Commissioner of Taxation. [F14] But I do not think so. I am not prepared prepared to say that the Parliament of New South Wales was guilty of a catachresis when it spoke of the "like right". This right was not, strictly speaking, an estate or interest in land. But that is immaterial. It was in jurisprudential language perhaps best classified as a power; but that does not put it outside the family of rights. I observe, in passing, that in Australian Iron & Steel Ltd v Hoogland [F15] Kitto J. said that that case was "one in which an amending Act could not apply without depriving a person ... of an accrued immunity or defence, that is to say without affecting a previous operation of the former provision, contrary (I would hold) to s. 8 (a) of the Interpretation Act of 1897 (N.S.W.)". That his Honour took a different view from the rest of the Court in that case does not deprive this remark of value. His words make manifest that par. (a), as well as par. (b), of s. 8 is significant for the present case. The right which the respondent claims was acquired by her as a result of "the previous operation" of s. 83A (1), that is to say the operation it had when her father died.
From what I have said so far it will be clear that my view of this case accords with the decision of the Supreme Court in Boyce v Hughes. [F16] I agree with the reasoning of Sugerman J. in that case. The only distinction between that case and this is that there the party in possession after 1968 based his claim on a right acquired under par. (d) of s. 83A (1), which paragraph was expressly repealed in 1968, whereas here the respondent's claim is to a right under par. (b) of s. 83A (1): and that paragraph, as it stood before 1968, was repealed not expressly but by implication. But that, as I have said, in my opinion makes no difference.
The respondent had acquired a right. She retains it by virtue of the Interpretation Act unless a contrary intention appears in the Act of 1968. I can see no indication of any contrary intention. We are not to import one, as was suggested, by noticing that apparently the legislature, after having by its earlier enactments favoured tenants, turned in 1968 to consider more sympathetically the position of landlords. Doubtless the policy behind a statute may be an aid to its construction; but only when it is revealed by the language of the statute itself or by extraneous facts of which a court can properly take notice. We cannot press too far the admonition of the Digest, 1.3.17: "scire leges non hoc est verba earum tenere, sed vim et potestatem". In the present case there is no special saving provision in the 1968 Act displacing s. 8 of the Interpretation Act, such as was considered in G. F. Heublein and Bro. Inc. v Continental Liqueurs Pty Ltd. [F17] And, as the Chief Justice has pointed out, the 1968 amendments do not purport to have any retrospective operation.
It will, I trust, be apparent that I found my opinion on the rights which the respondent got on the death of her father under the law as it was before 1968. I do not seek to interpret the 1968 Act by reference to the provisions it repealed. But, as my brother Gibbs has, in his judgment which I have had the benefit of reading, alluded to what he sees as an error in what I wrote in Australian Iron & Steel Ltd v Hoogland, [F18] I think I should mention this aspect. I there said that when an Act as amended is to be construed, it must be read as if a repealed provision had never existed. That is a mistake if it be taken as an absolute unqualified proposition: and perhaps it were better that I admit my mistake rather than try to explain it, especially as it occurred in a context which, in my view, has little bearing on the present case. Nevertheless some remarks are I think called for.
The following passage in Lord Tenterden's judgment in Surtees v Ellison [F19] has been often cited as a statement of fundamental common law doctrine: "It has been long established, that, when an act of parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. That is the general rule; and we must not destroy that, by indulging in conjectures as to the intention of the legislature." I add to that by way of emphasis what Dixon C.J. said in Maxwell v Murphy, [F20] which he repeated in Chang Jeeng v Nuffield (Australia) Pty Ltd. [F21] The common law doctrine that an enactment that has been repealed is to be treated thereafter as if it had never existed is subject to an exception in respect of past matters. And it is too sweeping if it be taken as meaning that statute law as it was before it was altered by an amending statute is to be utterly disregarded in construing the amending statute. That obviously is not so, if for no other reason that than the history of any enactment can often be regarded for the purpose of construing it if it be ambiguous or uncertain. The old law was the very "mischief" that the new enactment was passed to repair, and is thus proper to be borne in mind in reading the new provision. Furthermore, ever since the decision in Attorney-General v Lamplough [F22] it has been recognized that the repeal of one enactment in a statute does not necessarily mean that the provisions which remain must be read as if what was repealed had never existed. The question is, What does the Act as amended mean? and, in ascertaining that, regard may sometimes be had to provisions that have ceased to exist, for they may have established the meaning of words that remain. I certainly never meant to deny that. However, it is a theory that has little application when the question is not what is the meaning of enactments that remain after an enactment has been excised, but what is the effect of that which was substituted. In Bradlaugh v Clarke [F23] Lord Watson said: "It appears to me to be an extremely hazardous proceeding to refer to provisions which have been absolutely repealed, in order to ascertain what the Legislature meant to enact in their room and stead. There may possibly be occasions on which such a reference would be legitimate". [F24] In Hoogland's Case [F25] I referred to Te Kloot v Te Kloot, [F26] as I though it a good illustration of the kind of case in which it was fitting to say that a repealed provision ceased to have any application to the remainder of the statute whence it was removed. Without meaning to endorse all that was there said, I think it an important decision in the history of the jury in New South Wales and important too because it turned on the effect of s. 7 of the Matrimonial Causes Act, 1884 (N.S.W.), which remained upon the statute book until 1899 when it was re-enacted as s. 76 of the Matrimonial Causes Act, 1899. It was a decision of a Full Court of the Supreme Court (Windeyer, M. H. Stephen and Foster JJ.) upholding the action of the Chief Justice (Darley C.J.) in taking a majority verdict of a jury in a divorce trial in the same circumstances as a majority verdict might have been taken at nisi prius. It is hard to see that s. 7 of the Act of 1884, 48 Vict. No. 3, could be given any other effect after the express repeal of s. 6 by Act 56 Vict. No. 36 s. 1. However, it is not necessary to pursue this here in any detail, for the present case is of a very different kind.
In the final result I reach the same conclusion as that of the Chief Justice and my brother Gibbs, although, with respect for their approaches, I have proceeded to the same end by a rather different path, taking the Interpretation Act as the beacon that shows the way for me.
Before leaving the case, I should mention a procedural argument that was advanced for the appellant. It was suggested that to accord to the respondent a continuing right under s. 83A (1) would be to deprive the appellant of any process by which he could recover possession of his premises. This result it was said would flow, as s. 83A (2) as amended would not be available. But that I consider is a mistaken view of the position. The right which the Interpretation Act preserves for the respondent is the right that she acquired under s. 83A (1), being the like right to continue in possession of the premises as the deceased lessee would have had. That right must I consider be measured by the remedies that would have been available to the landlord if the deceased lessee had not died, treating the respondent as if she stood in the lessee's shoes. The process and methods available to a landlord to recover possession of premises are to be found in Pt III of that Act, commencing with s. 62. To recover possession of the subject premises the appellant must bring proceedings in accordance with the provisions of Pt III. Those provisions are of a procedural character and both parties will, I consider, be bound by the forms of process the law provides at the date when proceedings for recovery are taken-either their present form or one resulting by amendment hereafter.
I would dismiss this appeal.