Silk Bros Pty Ltd v State Electricity Commission of Victoria
67 CLR 1(Decision by: Starke J)
Silk Bros Pty Ltd
v State Electricity Commission of Victoria
Judges:
Latham CJ
Rich J
Starke JMcTiernan J
Williams J
Judgment date: 8 April 1943
Sydney
Decision by:
Starke J
STARKE J. This was a summons treated as the trial of an action which was removed into this Court either by force of the provisions of s. 40A of the Judiciary Act or by force of an order of this Court pursuant to s. 40 of the Act for an injunction restraining the defendant from taking or continuing any proceedings to terminate the tenancy of the plaintiff in certain premises or to recover possession thereof or to eject the plaintiff therefrom except under reg. 15 of the National Security (Landlord and Tenant) Regulations and also an injunction restraining the defendant from issuing its warrant to the Sheriff to recover possession of the said premises or to eject the plaintiff therefrom and from interfering in any way with the peaceable enjoyment by the plaintiff of the said premises and other ancillary relief.
It appears from the affidavits filed on the summons that the plaintiff was in possession of certain premises at South Melbourne. These premises had been let to it in July 1942 by the liquidator of James Moore & Sons Pty Ltd at a rental of thirteen pounds per month on condition that, if the premises were sold and the plaintiff then be given notice to vacate, it would do so. The premises were sold to Dorothea Cecelia Meehan, and the plaintiff was informed of this fact on 24th September 1942 and told that vacant possession was required on 23rd October 1942 and that it was required to vacate them on that date. On 3rd December 1942 the defendant acquired the premises by agreement from D. C. Meehan pursuant to its powers under its Act-the State Electricity Commission Act 1928-and subsequently on 21st December 1942 also gave a notice to treat pursuant to the Act.
It was not disputed that the purchase money under the agreement had been paid and a transfer of the premises to the defendant executed which had not at the time of the argument before this Court been registered under the Transfer of Land Act 1928. On the 10th February 1943 the defendant required the plaintiff to vacate the premises before 18th February 1943 and notified the plaintiff that failing compliance with this requirement the defendant would issue its warrant to the Sheriff to take possession pursuant to the provisions of the Lands Compensation Act 1928.
The plaintiff did not contend that its possession of the premises could be maintained apart from the provisions of the National Security (Landlord and Tenant) Regulations and National Security (Fair Rents) Regulations.
The argument occupied considerable time and traversed much ground, but the case can be dealt with without undue prolixity.
On 8th April 1941 the Governor in Council of the State of Victoria pursuant to the provisions of the National Security (Fair Rents) Regulations (reg. 9) abolished every Fair Rents Board at any place within certain municipal districts and constituted a Fair Rents Board (reg. 7) to be known as the Metropolitan Fair Rents Board (consisting of such police magistrate as was assigned for the purpose for the time being by the Attorney-General) at the City Court, Russell Street, Melbourne, to exercise the powers conferred by the Fair Rents Regulations. And on 8th April 1941 the Governor in Council of the State of Victoria appointed Raymond Henry Beers, Police Magistrate, to be the Fair Rents Board constituted under the before-mentioned Order in Council. Another magistrate was later appointed by the Governor in Council of the State of Victoria to be also the Fair Rents Board constituted under the same Order in Council. The Landlord and Tenant Regulations provided that the powers and functions of Fair Rents Boards under these Regulations might be exercised in any State in which a Fair Rents Board was constituted under the Fair Rents Regulations by a Fair Rents Board so constituted (See reg. 3 (2) and (3)). The powers and functions of Fair Rents Boards under the Landlord and Tenant Regulations are to determine a fair rent of any prescribed premises, that is, any premises, with certain exceptions, and the rent determined is the rent payable by the lessee notwithstanding any term or covenant in any lease of the premises to the contrary (See regs. 9 and 13).
Reg. 15 then provides, so far as material:
"( 1) Subject to this regulation, the lessor of any prescribed premises shall not give any notice or take or continue any proceeding to terminate the tenancy or to recover possession of the premises or for the ejectment of the tenant therefrom :
(2) Subject to the succeeding sub-regulations...an application may be made by a lessor to a Fair Rents Board for an order for the recovery by him of any prescribed premises...or for the ejectment of the tenant therefrom if the lessor, before taking such proceedings, has given to the lessee notice to quit for a period not less than a period calculated by allowing seven days for each completed period of six months of occupation and adding thereto seven days, and that period of notice has expired, upon one or more of"
certain grounds which have no relevance to this case "but upon no other ground."
But the defendant contends that the Landlord and Tenant Regulations are invalid or, if valid, do not cover the present case:
(a) Because the Regulations transcend the power of the Parliament of the Commonwealth to make laws with respect to the naval and military defence of the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth (Constitution, s. 51 (vi.)).
The argument was that the Regulations apply throughout the length and breadth of Australia without any regard to the varying conditions in that area and are in substance a regulation for the social control of the relation of landlord and tenant with respect to rent, having no connection with the defence of the Commonwealth. But the argument cannot be sustained in the face of such decisions as Farey v Burvett [[11]] and Andrews v Howell [[12]] , which are based on the necessity or propriety of stabilising or controlling the prices of commodities and of services on the home front and providing food for the people of the Empire and its armed forces in time of war. That is a legitimate exercise of the defence power, at least in time of war. But the Chief Justice has observed that the most complete recognition of the power and responsibility of Parliament and of the Government in relation to defence does not involve the conclusion that the defence power is without any limits whatever (Victoria v The Commonwealth [[13]] )-See also Andrews v Howell [[14]] . And it is for the courts of law to determine when those limits have been passed.
The court must consider the legislation in its entirety and in relation, I apprehend, to the common and public knowledge of the time. Farey v Burvett [[15]] and Andrews v Howell [[16]] attach, I think, but little importance to such knowledge. The matters to which I refer may be found in the former case in the judgment of Higgins J. [[17]] , and in the latter case in my own judgment [[18]] , and now may be added the fact that the operation of the acquisition scheme in the latter case has involved considerable loss and for the present, at all events, has ceased to operate in four States. The fair-rents scheme is not, I think, open to any like criticism, and it is far too late in this Court to challenge the Landlord and Tenant Regulations for the reasons assigned in argument at the Bar.
(b) Because the Landlord and Tenant Regulations, particularly reg. 15, purport to invest the Fair Rents Board known as the Metropolitan Fair Rents Board and other Boards operating pursuant to that regulation with judicial power in violation of the provisions of the Constitution.
It is an established doctrine of this Court that the judicial power of the Commonwealth can only be vested in the High Court or in such other Federal courts as Parliament creates and in such other Courts as it invests with Federal jurisdiction. And also that it is incompetent to appoint Justices of the High Court or of the other courts created by Parliament under s. 71 of the Constitution with other than a life tenure of office (Waterside Workers' Federation of Australia v J. W. Alexander Ltd [[19]] ; British Imperial Oil Co Ltd v Federal Commissioner of Taxation [[20]] ; Shell Co of Australia Ltd v Federal Commissioner of Taxation [[21]] ).
The provisions of reg. 15 vest in the Boards therein mentioned the power to decide controversies between landlords and tenants relating to the right to possession of premises and to order the issue of orders for recovery thereof or ejectment of the tenant therefrom. But this is a typical instance of judicial power, and the members of the Board are not appointed for life, but during pleasure only (See Fair Rents Regulations, reg. 7(4)).
The plaintiff countered this argument by another, namely, that the jurisdiction conferred upon the Fair Rents Board known as the Metropolitan Fair Rents Board under reg. 15 was Federal jurisdiction invested in a court of the State of Victoria pursuant to s. 77 (iii.) of the Constitution. This argument cannot be sustained. The Board consists of a police magistrate of the State of Victoria assigned for the purpose, but the jurisdiction is not in terms conferred upon any court of summary jurisdiction but upon a tribunal consisting of an individual answering to the description of a police magistrate assigned for the purpose of exercising the powers conferred upon that tribunal. The provisions of the Fair Rents Regulations, regs. 7 (1) and (3), under which the Metropolitan Board was constituted support this view, and so do the Landlord and Tenant Regulations, reg. 3 (3) (a) and (b). The amended Landlord and Tenant Regulations, 1943 No. 12, have no application to this case, for a ministerial order was made on 25th March 1942 declaring that the provisions of the National Security (Landlord and Tenant) Regulations which were not otherwise in force in the State of Victoria should apply in that State. Reg. 15 and also reg. 16 connected with it are therefore invalid.
The plaintiff then contended that, if regs. 15 and 16 of the Landlord and Tenant Regulations were invalid, then the whole of those Regulations were void, which entitled him to fall back on the Fair Rents Regulations, particularly upon reg. 17, which provided that a lessor should not without the consent of a Fair Rents Board demand any increased rent or give any notice or take any proceeding to terminate the tenancy.
But there are several answers to this argument. One, that the Landlord and Tenant Regulations are not wholly void. The invalidity of regs. 15 and 16 still leaves a body of separate and independent provisions relating to the determination of fair rents, e.g., regs. 11 and 12, 13 and 14, which are consistent, workable and effective notwithstanding the invalidity mentioned: See Deputy Federal Commissioner of Taxation (N.S.W.) v W. R. Moran Pty Ltd [[22]] , at pp. 772, 773, and the provisions of the Acts Interpretation Act 1901-1941, ss. 15A and 46. And they supersede the Fair Rents Regulations.
Another, that the Fair Rents Regulations were repealed by Statutory Rules 1943 No. 12. This repeal was said to be dependent upon the validity of the Landlord and Tenant Regulations, but I can find no support for this argument in the terms of the repealing Regulations or otherwise.
Further, the plaintiff's premises were exempt from the operation of reg. 17, for it was not proved to be a factory or shop within the meaning of reg. 17 (3) (e). It was said that the Fair Rents Regulations, particularly reg. 17, operated in any event until 13th January 1943, when they were repealed (Statutory Rules 1943 No. 12), but that is quite immaterial if the plaintiff's premises were not a shop.
An argument was also made that the defendant was not entitled to issue a warrant to the Sheriff under the provisions of the Lands Compensation Act 1928. But the facts proved in this case authorize the exercise of the powers given by s. 50 of that Act.
The defendant, I should add, also contended that it was not a lessor within the meaning of reg. 15 of the Landlord and Tenant Regulations, but it is unnecessary and, I think, undesirable, in the view I take, to discuss this contention, which involves in this case some technical considerations concerning the relation of the defendant to the plaintiff.
The result is that the action should be dismissed.