Silk Bros Pty Ltd
v State Electricity Commission of Victoria

Judges: Latham CJ
Rich J
Starke J
McTiernan J

Williams J

Sydney

Judgment by:
Williams J

WILLIAMS J. I have read and substantially concur in the judgment of my brother Starke, and I have little to add.

But I prefer not to decide upon the present evidence whether the premises at South Melbourne were being used by the plaintiff as a shop, as it is in my opinion unnecessary to express any opinion on this point.

The National Security (Fair Rents) Regulations were repealed at the latest on 13th January 1943 by the express repeal contained in Statutory Rules 1943 No. 12. Reg. 15 of the National Security (Landlord and Tenant) Regulations, which attempted to invest the Fair Rents Board with judicial power in violation of the Constitution was invalid ab initio , and reg. 16 fell with it, so that the plaintiff, after 13th January 1943 had no security of tenure other than that conferred upon him by the law of Victoria. It is unnecessary to decide what rights the plaintiff had to continue in possession of the premises under that law after that date, because it had at most a tenancy that came within the provisions of s. 60 of the Lands Compensation Act 1928 (Vict.). This section applies, in my opinion, to the acquisition of land under the Act whether by agreement or notice to treat. The defendant was entitled therefore at the date of the commencement of the action on 17th February 1943 to eject the plaintiff from the premises in accordance with s. 50 of the Act, and the plaintiff's only remedy, if any, is a claim for compensation under s. 60 of the Act.

The action should be dismissed.