The Commonwealth v Anderson [1960] HCA 85

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto, Menzies and Windeyer JJ. The Commonwealth v Anderson [1960] HCA 85

ORDER The Commonwealth v. Anderson. Order that the questions in the case stated be answered as follows:— 1. The Supreme Court of New South Wales has jurisdiction to entertain proceedings by the Commonwealth in ejectment for the recovery of possession of the land in question from the defendant. 2. Judgment in ejectment for the recovery of possession of such land from the defendant may be entered in favour of the Commonwealth notwithstanding the provisions of Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958 of New South Wales.Order that the defendant pay the costs in the High Court of Australia of the case stated. Remit the case with the foregoing answers to the Supreme Court of New South Wales. The Commonwealth v. Nichols. Order that the questions in the case stated be answered as follows:— 1. The Supreme Court of New South Wales has jurisdiction to entertain proceedings by the Commonwealth in ejectment for the recovery of possession of the land in question from the defendant. 2. Judgment in ejectment for the recovery of possession of such land from the defendant may be entered in favour of the Commonwealth notwithstanding the provisions of Pt III of the Landlord and Tenant (Amendment) Act 1948-1958, N.S.W..Order that the defendant pay the costs in the High Court of Australia of the case stated. Remit the case with the foregoing answers to the Supreme Court of New South Wales.

Cur. adv. vult.

The following written judgments were delivered in each of the matters argued:—

Nov. 23 Dixon C.J.

The Commonwealth v. Anderson.

Under the provisions of the Lands Acquisition Act 1906-1936 Cth the Commonwealth of Australia acquired certain land at Redfern, Sydney, for postal purposes. Included in the land were some premises in Cleveland Street. Some four years later the occupier of these premises acknowledged in writing to the Commonwealth that she occupied them as a tenant from week to week of the Commonwealth. The document contained a clause that the Commonwealth might determine the tenancy at any time by one week's previous notice in writing. In April 1960 the Commonwealth duly served a notice to quit upon the occupier in accordance with the clause but she failed to give up possession of the premises. On 11th May 1960 the Commonwealth as plaintiff issued out of the Supreme Court of New South Wales a writ of ejectment against the occupier, thus overholding, as defendant. She entered an appearance and filed particulars of her defence the material parts of which alleged that within the meaning of those expressions in the Landlord and Tenant (Amendment) Act, 1948-1958 N.S.W., she is a lessee of the premises and they are prescribed premises and she further alleged that the Supreme Court is not a court of competent jurisdiction to hear and determine the claim. In fact, if that statute were applicable, the premises would be "prescribed premises". Upon an application to strike out the particulars of defence coming before Else-Mitchell J. he stated under s. 18 of the Judiciary Act 1903-1959 a case for this Court asking two questions. They are, first, whether the Supreme Court of New South Wales has jurisdiction to entertain proceedings (scil. by the Commonwealth) in ejectment for the recovery of possession of the land from the defendant, and second, whether judgment in ejectment for the recovery of possession of the land from the defendant may be entered in favour of the Commonwealth notwithstanding that the Commonwealth has not complied with the provisions of Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958 N.S.W..