The Commonwealth v Rhind [1966] HCA 83

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. The Commonwealth v Rhind [1966] HCA 83

ORDER Declare that since the third day of March 1965 the Commonwealth of Australia has been entitled to the possession of all that piece of land known as No. 107 Woolwich Road, Woolwich, in the State of New South Wales. Order that the Commonwealth of Australia recover possession of the said land. Order that the defendant pay to the Commonwealth of Australia the costs of this action, the costs in respect of the proceedings heard in the Supreme Court of New South Wales according to the scale of costs appropriate thereto and the costs in respect of the proceedings in this Court according to the rules of this Court.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 21 Barwick C.J.

On 15th February 1965 the defendant was tenant to the Commonwealth of Australia and the occupant of a dwelling house at Woolwich, Sydney, under a weekly tenancy in respect of which the weekly rental did not exceed £12 12s. 0d. per week or an equivalent sum calculated in respect of any other period. On that day a notice directed to the defendant to quit and deliver up possession of the premises was signed "for and on behalf of the Commonwealth of Australia" by the Chief Property Officer for New South Wales of the Department of the Interior. The Minister for the Interior by a writing signed on 19th November 1959 had authorized that Chief Property Officer to sign for and on behalf of the Commonwealth of Australia all notices to quit which might be addressed to tenants of premises owned by the Commonwealth in the State of New South Wales, the service of which should have been previously authorized by the Minister. Presumably the Minister prior to 15th February 1965 had authorized the service upon the defendant of a notice to quit. The notice was duly served, but the defendant failed to deliver up possession of the premises within the time specified. Thereupon the Commonwealth of Australia as claimant commenced an action of ejectment by writ of summons against the defendant in the Supreme Court of New South Wales. The defendant entered an appearance and filed particulars of defence. By these he raised a defence that the weekly tenancy had not been determined (this defence being an attack upon the efficacy of the notice to quit) and an alternative defence that the tenancy which had been determined was a tenancy of a dwelling house actually occupied by the defendant in respect of which the rent did not exceed £12 12s. 0d. per week or its equivalent calculated in respect of any other period (this being a reference to s. 2A of the Landlord and Tenant Act, 1899-1965 NSW); and that therefore the Supreme Court was not "a court of competent jurisdiction to hear and determine the claim". The action was tried on 21st September 1965 when the primary judge gave a verdict for the defendant, and directed that judgment be entered accordingly. The grounds upon which the primary judge took this course were, first, that the notice to quit was ineffective because having regard to the provisions of s. 60 of the Lands Acquisition Act 1955-1957 Cth it could have been validly signed in the circumstances only by the Attorney-General; and, secondly, because by reason of s. 2A of the Landlord and Tenant Act (the Act) the Supreme Court had no jurisdiction to entertain an action of ejectment where the terms of that section were satisfied.