Mathieson v Burton

124 CLR 1

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(Decision by: MENZIES J)

Between: MATHIESON
And: BURTON

Court:

Judges: Barwick CJ
McTiernan J

Menzies JWindeyer 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)

Hearing date: SYDNEY 4 November 1970
Judgment date: 4 March 1971

MELBOURNE

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Decision by:
MENZIES J

The respondent, upon the death of her father on 14th September 1958, acquired the same right to continue in possession of the prescribed premises of which the father was lessee as he would have had if he had not died; Landlord and Tenant (Amendment) Act, 1948, s. 83A, as amended in 1952.

The appellant's case is that the foregoing right to continue in possession was lost upon the enactment of s. 4 (h) (i) of the amendment made to the Act in 1968.

The relevant legislation is set out in full in the judgment of the Chief Justice and I do not repeat it here.

Had the law stood on 14th September 1958 as it became in 1968, the respondent would not have had any right to continue in possession of the premises because she was neither a protected person nor in receipt of a pension under the Social Services Consolidation Act 1947 (Cth).

Counsel for the appellant put forward two alternative contentions to arrive at the result that the respondent lost her right to continue in possession of the premises upon the enactment of the amending Act of 1968.

The first was that the amending Act repealed s. 83A as amended in 1952 so that it could no longer afford the respondent any rights at all. It was part of this submission that, upon the repeal, her existing rights were not protected by s. 8 (b) of the Interpretation Act of 1897. I reject this contention on the simple ground that the amending Act of 1968 did not repeal and then re-enact s. 83A with a further amendment. It simply further amended s. 83A. Of course it changed the law, but, unless its language indicates a contrary intention, it changed the law merely for the future, so that thenceforward s. 83A operated as amended thereby.

The second contention was that the language of s. 4 (h) (i) of the amending Act of 1968 shows that it was intended to operate retrospectively in that it is expressed in the past tense, viz. "who, at the date of the lessee's death, was a protected person" etc. Such a reading of the section would confine the protection now afforded by s. 83A as amended to the child of a lessee who, at the date of the death of the lessee, was over twenty-one years of age, was a protected person, was residing with the lessee immediately before his death, and was in possession of the premises immediately after the death of the lessee.

It is not easy to be satisfied why it is that such a mixture of tenses is to be found in s. 83A as now amended, and in particular why the word "was", rather than the word "is", has been used in s. 4 (h) (i) of the amending Act of 1968. It would, however, be a totally unacceptable construction to confine the operation of the amending section to cases of death of the lessee before the enactment of the amending legislation. This being so, I have come to the conclusion that the use of the word "was" was intended to do no more than emphasize that, for the future, rights are given only when, prior to the death of the lessee, the child of the lessee had become a protected person or a person in receipt of a pension.

Accordingly, I do not read s. 4 (h) (i) of the amending Act of 1968 as destroying the right to possession which the respondent obtained upon the death of her father in 1958. Her right to continue in possession of the premises is still to be measured by the right that her father would have had if he had not died.

For this reason I would dismiss the appeal.