Practitioners acting for the Commonwealth in landlord-tenant disputes should note that State tenant protection legislation that does not bind the Commonwealth cannot be imported via s 64 of the Judiciary Act, and the Commonwealth may proceed by ordinary ejectment in the Supreme Court.
Later decisions that cite Commonwealth v Anderson
Decisions cited by Commonwealth v Anderson
THE COMMONWEALTH v. ANDERSON [1960] HCA 85; (1960) 105 CLR 303
Landlord and Tenant
High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Menzies(5) and yer(4)
Windeyer(6) JJ.
CATCHWORDS
Landlord and Tenant - Ejectment - Information of intrusion - Action by Commonwealth - Jurisdiction of Supreme Court of New South Wales - Approximation of rights of Commonwealth and other party to action to rights between subject and subject - Applicability of State legislation denying jurisdiction to Supreme Court - Action of ejectment available to Commonwealth - The Constitution (63 & 64 Vict. c. 12.), ss. 75 (iii), 77 (iii) - Judiciary Act 1903-1959 (Cth), s. 39 (2), s. 64. - Common Law Procedure Act, 1899-1957 (N.S.W.), Pt XXI, ss. 209, 210 - Landlord and Tenant (Amendment) Act, 1948-1958 (N.S.W.), ss. 5 (a), 62, 69.
HEARING
Sydney, 1960, August 10, 11; November 23. 23:11:1960DECISION
November 23.2. The jurisdiction of the Supreme Court to entertain an action by the Commonwealth arises under sub-s. (2) of s. 39 of the Judiciary Act 1903-1959. By that sub-section the several courts of the States are invested, within the limits of their several jurisdictions, with federal jurisdiction in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, subject to certain exceptions and conditions not presently material. By s. 75 (iii) of the Constitution jurisdiction is conferred upon the High Court in all matters in which the Commonwealth is a party and of course s. 77 (iii) empowers the Parliament to make laws investing any court of a State with federal jurisdiction with respect to any of the matters mentioned in s. 75 or s. 76. It cannot be maintained that an action of ejectment by the Commonwealth is placed by Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958 (N.S.W.) outside those limits of the jurisdiction of the Supreme Court to which the terms of sub-s. (2) of s. 39 of the Judiciary Act 1903-1959 refer. The reason why it cannot so be maintained is that s. 5 of the Landlord and Tenant (Amendment) Act expressly provides that the Act shall not bind the Commonwealth. It seems clearly to follow from the foregoing that federal law confers upon the Supreme Court jurisdiction to entertain an action by the Commonwealth for the recovery of premises from an overholding tenant. But it is s. 39 (2) and not Pt IX of the Judiciary Act which enables the Commonwealth to sue as plaintiff. Part IX is entitled "Suits by and against the Commonwealth and States" but it contains no provision expressly authorizing the Commonwealth to sue in the Supreme, or for that matter in the High Court. Of course s. 75 (iii) of the Constitution enables the Commonwealth to sue in the High Court and no doubt reliance was placed simply on the constitutional provision. In the case of the Supreme Court, as appears from what has already been said, it is upon s. 39 (2) of the Judiciary Act that reliance was evidently placed as the source of the authority to entertain an action by the Commonwealth. The result however is to raise some doubt as to the application of any of the provisions of Pt IX to suits by the Commonwealth whether in the High Court or in the Supreme Court of a State. But s. 61 provides that suits on behalf of the Commonwealth may be brought in the name of the Commonwealth by the Attorney-General or by a person appointed by him in that behalf. That seems enough to warrant the assumption that other sections contained in the Part, if they are capable of a relevant application to a suit by the Commonwealth in the High Court or a Supreme Court, are intended to apply to such a proceeding. On that assumption it is necessary to consider the effect of s. 64. Section 64 provides that in any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. This provision, which certainly has its difficulties, has been considered by the Court on more than one occasion, the latest being Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1956] HCA 82; (1956) 96 CLR 397 where earlier authorities are collected (1956) 96 CLR, at p 417 . The defendant in the present case relies upon the terms of the section to bring into the Commonwealth's action against her the State law which would operate between party and party as the governing law for the determination of that action and she says that it is to be found in the provisions of the Landlord and Tenant (Amendment) Act, 1948-1958 protecting tenants from ejectment, notwithstanding the exclusion of the Commonwealth from the binding operation of the enactment. Her reliance is placed upon the direction contained in s. 64 that in the suit the rights of the parties shall be the same as in a suit between subject and subject and this, she says, makes it necessary to apply the provisions of Pt III of the State statute which govern the rights of subject and subject in like case. She contends that the express exclusion of the Commonwealth from the direct operation of the State statute is therefore irrelevant, for we are concerned only with federal law and federal law incorporates by adoption and applies to the suit so much of the State law as affects the determination of a litigation between subject and subject. (at p309)
3. Whatever difficulties may be found in s. 64 in other connexions, it seems plain enough that the defendant's contention can receive no support from the operation of the section. It may be conceded, at all events for the purposes of the argument, that once you have a suit in the High Court or the Supreme Court to which the Commonwealth is a party, then for all purposes to which the words "rights of parties", on the true meaning of the provision, extend, the law as between subject and subject must so far as possible be taken to supply the rights of the parties notwithstanding that one is a government. It is perhaps not unimportant to bear in mind that it is the rights of parties as in a suit between subject and subject, not the law, that are to apply as nearly as may be. But in any case the essential condition of the application of s. 64 is the existence of the suit to which the Commonwealth is a party and as a result of s. 39 (2) of the Judiciary Act 1903-1959 that includes a suit in the Supreme Court in which the Commonwealth is plaintiff. It is obvious therefore that no provision of State law which provides that such a suit shall not be brought in the Supreme Court as between subject and subject can be the source of such rights. Now a provision of Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958 which is essential to its operation is s. 69, making courts of petty sessions the only competent courts for the purposes of the material provisions of Pt III which govern in substance the regulation of the rights at common law as between subject and subject. Clearly s. 69 can have no effect under s. 64 of the Judiciary Act yet it is an inseverable part of the regulation of the rights of landlord and tenant contained in Pt III of the Landlord and Tenant (Amendment) Act, 1948-1958. It is s. 62 upon which substantially the regulation of such rights initially depends. Sub-section (3) of s. 62 provides that subject to Pt III a lessor may take proceedings in any court of competent jurisdiction for an order for the recovery by him of any prescribed premises if the lessor has given the lessee notice upon one or more of the prescribed grounds. Although when you turn to the prescribed grounds - they are stated in sub-s. (5) - you may perhaps see nothing incompatible with their receiving an operation independently of the jurisdiction by which they are enforced, other provisions of Pt III make it clear that the actual practical effect of the grounds in any given case is subject for the most part to a more or less discretionary judgment confided to a court of petty sessions or, if and where under s. 69A it is replaced by a tenancy court, to that court. To make this clear it might perhaps be enough to refer to s. 70 (1) which requires the court to take into consideration not only hardship to lessor and lessee and other persons but in certain cases the availability of suitable alternative accommodation. But a study of other provisions will show that the regulation of the entire question of the termination of a tenant's occupancy of prescribed premises is left to what may be described as the controlled discretionary determination of the "competent court". Sub-section (2) of s. 70 and its intricate provisoes, sub-ss. (3A), (3) and (6), ss. 70A, 71, 72 (2) and 77 (1) (a) are the chief sources of this qualified discretionary control. It is difficult, indeed it is impossible, to find in Pt III the creation of definite rights between subject and subject operating independently of the authority of the competent courts, the petty sessions and proclaimed tenancy courts. In other words the provisions contained in Pt III are not the source of definite rights between subject and subject capable of appropriation under s. 64 of the Judiciary Act to the purpose of determining what are the rights between the Commonwealth and its tenants in a suit in the High Court or the Supreme Court. Provisions of a State law of such a kind denying general jurisdiction which would otherwise exist over a subject matter and committing the subject to a special tribunal armed with particular powers and discretions in the judicial administration of State legislative restrictions on common law rights cannot supply the rights between subjects to be applied pursuant to s. 64 in the actual exercise of the jurisdiction of the Supreme Court and High Court invested by the Constitution or the Judiciary Act. In the application of s. 64 of the Judiciary Act you begin with the existence of the jurisdiction and of the suit brought by or against the Commonwealth or State. Part III is based essentially upon the condition it prescribes that no such suit can be brought between subject and subject because their legal relations in the relevant subject matter are regulated otherwise. There are no resulting rights between subject and subject which can be treated as the same between the Commonwealth and the overholding tenant whether absolutely or as nearly as possible. (at p311)
4. There remains a further question which however is hardly covered by the questions in the case stated. The question is whether proceedings by way of ejectment in the Supreme Court of New South Wales form a remedy available to the Crown in right of the Commonwealth. At common law the Sovereign had the undoubted privilege of suing in any court he pleased and might avail himself of remedies given to the subject. See Chitty's Prerogatives of the Crown (1820) pp. 244, 245, and Robertson's Civil Proceedings By and Against the Crown (1908) p. 2. But it was necessary that the remedy should not be inconsistent with the nature and character of the Crown. "The general rule is" says Chitty, p. 245, "that the King may waive his prerogative remedies, and adopt such as are assigned to his subjects. He may maintain the usual common law actions, as trespass quare clausum fregit, or for taking his goods. The only exception seems to be in the case of actions, which suppose an eviction or disseisin, as an assize, or, it seems, an action of ejectment. The King cannot maintain such actions, they being inconsistent with his royal dignity, and contradictory to the fiction of law, that the King cannot be dispossessed of property once vested in him." The reason for the belief that an action of ejectment as at the date when Chitty wrote (1820) was not available as a remedy to which the Crown could resort, lies in the fictions on which the action of ejectment at common law was necessarily based. The action at common law depended upon certain fictional allegations which were not traversable. The person seeking to recover land was placed in the position of a lessor to a nominal plaintiff, commonly called John Doe but sometimes given the name of Goodtitle. It was alleged that there was an entry by him under a lease granted to him by the lessor. It was then alleged that there had been an ouster of him by another fictional person, Richard Roe, who was sometimes given the alternative name of Badtitle. The declaration alleged that John Doe had sustained damage by the ejectment by Richard Roe and for that brought the action. But at the foot of the declaration was a notice addressed to any tenant who was in possession, informing him that Richard Roe was sued as a casual ejector only and advising any actual possessor to appear in court and procure himself to be made a defendant instead of Richard Roe on pain of being turned out of possession. In fact the person so in possession could only defend the action in that character by a consent rule whereby he bound himself to admit the foregoing fictions, namely, the alleged lease, entry and ouster and to plead no plea but the general issue and to insist on title only as a defence. The difficulty in the Crown resorting to this procedure was that the fictions would represent the Crown as in the position of a lessor holding by its tenant and complaining of an eviction of the Crown holding by such tenant contrary to the theory that the Crown cannot be dispossessed of property once vested in it and therefore inconsistent with the royal dignity. By the Common Law Procedure Acts the whole basis of the action of ejectment was changed and the fictions upon which at common law it was based entirely disappeared. To begin with, it is an action commenced by writ. The writ is directed to the persons in possession by name and to all persons entitled to defend the possession of the property claimed. It does not suppose that he or any fictional person gained possession by the eviction of the Crown or any person holding under the Crown. The form of writ is prescribed and contains no allegation inconsistent with the dignity of the Crown. The person in possession may have been a tenant of the Crown who simply overholds or he may have obtained possession without any such ouster of the Crown as cannot be supposed. The writ states the names of the persons in whom the title is alleged to be, commands the persons to whom it is directed to appear and defend the possession of the property which is claimed or such part of it as they think fit, and it contains a notice that in default of appearance they will be turned out of possession. The whole character of the action in New South Wales appears from Pt XXI of the Common Law Procedure Acts, 1899-1957 and more particularly from ss. 209, 210. Whether it was correct that the Crown could not resort to a common law action of ejectment because of the nature of the fictions involved may perhaps be doubtful, but the statutory action of ejectment is a remedy given to the subject to eject a person in possession without title to remain in possession and that is what the Crown alleges and claims. There is no reason why the Crown should be limited to a writ of intrusion and should not resort to the ordinary statutory remedy. This point accordingly fails. (at p313)
5. The questions in the case stated should be answered as follows: 1. The
Supreme Court of New South Wales has jurisdiction to entertain
proceedings by
the Commonwealth in ejectment for 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.
The Commonwealth v. Nichols (at p313)
6. DIXON C.J. This case stated which was argued with the case of The
Commonwealth v. Anderson raises the same points as are decided
by the judgment
in the latter case. The decision in this case must be the same, for the
reasons there set out. The answers to the
questions in the case stated should
be 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.). (at p313)
McTIERNAN J. I agree with the answers proposed by the Chief Justice and with his reasons. (at p313)
FULLAGAR J. I would myself be content to decide this case on the grounds stated by me in Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1956] HCA 82; (1956) 96 CLR 397, at p 424 . I must add, however, that I have had the advantage of reading the judgment of the Chief Justice, which has just been delivered, and I agree with his Honour's construction of the Landlord and Tenant (Amendment) Act, 1948-1958 (N.S.W.). I also agree that no State Act could take away or qualify a jurisdiction given to State Courts by a valid law of the Commonwealth. (at p313)
2. The questions asked by the case stated should, in my opinion, be answered in the manner proposed by the Chief Justice. (at p313)
3. FULLAGAR J. I repeat what I have said in the case of The Commonwealth v. Anderson. The question asked by the case stated should, in my opinion, be answered in the manner proposed by the Chief Justice. (at p313)
KITTO J. The principal contention of the respondent in this appeal rests upon s. 64 of the Judiciary Act 1903-1959 (Cth). As to that, I agree in the opinion which has been expressed by the Chief Justice, and have nothing to add. (at p314)
2. The question raised during the hearing as to whether the modern action of ejectment is available to the Crown is one of difficulty, and I have not succeeded in the search I have made for a clear answer. There are strong indications in the books that before the procedure in ejectment was reformed in England by the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76) the Crown could not maintain ejectment, its remedy for infringement of the right to exclude others from its land being by information of intrusion in which only the fact of the intrusion was in issue. The reason suggested by counsel in Doe v. Redfern [1810] EngR 101; (1810) 12 East 96 (104 ER 39) is that "the action of ejectment by the King supposes him to have been turned out of possession, which cannot be; for if he be entitled at all, he is presumed to be in possession: and though ejectment be a fictitious proceeding, yet it must be consistent throughout, and the lessor must not only have in himself, but be capable of conveying to the plaintiff, a legal interest. So an intruder is not supposed to put the King out of possession; and therefore if the King have judgment on an information of intrusion, no habere facias seisinam issues" (1810) 12 East, at p 107 (104 ER, at p 43) . That the action of ejectment does not provide a remedy for the Crown seems to be assumed by s. 4 of the statute 21 Jac. 1, c. 14, which is set out conveniently in a footnote to Attorney-General v. Parsons [1836] EngR 12; (1836) 2 M & W 23 (150 ER 652) . The doctrine that the Crown never loses possession of its lands was assigned as the reason in the course of the argument in Attorney-General v. Lord Churchill (1841) 8 M & W 171, at pp 177, 186, 187, 191, [1841] EngR 581; (151 ER 997, at pp 999, 1003, 1005). with no recorded dissent from the Bench. It is said in Comyn's Digest, under the title "Praerogative" (D. 71) p. 63, citing Stauneford, "If the King be seised of lands or tenements by matter of record, he cannot be disseised or ejected; but if any one enters, he will be an intruder upon the King's possession". Then it is added: "So, if the King's tenant holds over his term"; and under the title "Estates" (I 2): "But none shall be tenant by sufferance against the King . . . for if his tenant holds over he shall be an intruder". (at p314)
3. I refrain from further citations, for all the other material I have come across, and more, is mentioned in the judgment about to be delivered by my brother Windeyer. But I would make the comment on the opinion expressed by Adams that, if it is right, the idea that the Crown could not sue in ejectment must have been erroneous before 1852 but must be correct now. Perhaps I should add that the view that intrusion and not ejectment is the remedy at law available to the Crown seems to have been assumed by Sir Roundell Palmer when arguing as Attorney-General in Reg. v. Hughes (1865) LR 1 PC 81, at pp 86, 87 , and by the Privy Council itself in Osborne v. Morgan (1888) 13 AC 227, at p 234 . (at p315)
4. While I have not been able to find a clear answer to the problem, I have found more than enough to show that the problem is real and deserves a legal answer. I hope I shall be pardoned for saying that, to me, none of the answers which have been or are to be suggested in this case appear entirely convincing. (at p315)
5. I am not willing to waive aside as a figment of the imagination a notion which I find expressed from time to time over a considerable period by counsel and text-writers, with nothing in the reports to suggest that judges ever threw doubt upon it. And I am not willing to condemn it as irreconcilable with modern legislation, when I have not ascertained what was its basis in logic or in legal theory in earlier times and am therefore not in a position to say whether modern legislation has or has not destroyed that basis or the reasoning founded upon it. Still less am I prepared to write the notion out of the law on the ground that it smacks of feudalism, or clanks mediaeval chains. And it seems to me rather too stubborn to be got rid of by our assuring one another that nous avons change tout cela. (at p315)
6. However, there is nothing to be gained in this case by pursuing the matter further, since a majority of the Court is satisfied to rule that the Commonwealth may maintain ejectment. On the assumption that it may, I agree that the questions before us ought to be answered in the manner proposed by the Chief Justice. (at p315)
7. KITTO J. I agree that the questions should be so answered. (at p315)
MENZIES J. The Commonwealth, having in 1951 compulsorily acquired land in Redfern for postal purposes, Myee Eva Anderson, the occupier of one of the houses, on 10th May 1955 acknowledged that she occupied it as a tenant of the Commonwealth. It was a term of the tenancy that the Commonwealth could determine it by one week's notice in writing given in the manner agreed. The tenancy was determined on 2nd May 1960 by a notice to quit. On 11th May 1960 the Commonwealth took proceedings in ejectment in the Supreme Court of New South Wales to recover possession of the premises from Mrs. Anderson. The defendant's plea was as follows: - "1. The defendant admits the particulars of claim of the claimant but is in possession of the property claimed and relies on her said possession. 2. The claimant is a lessor and the defendant a lessee of prescribed premises within the meaning of the Landlord and Tenant (Amendment) Act, 1948- 1958. 3. The Supreme Court is not a court of competent jurisdiction to hear and determine the claim." The Commonwealth sought to have the plea struck out and leave to enter judgment for recovery of the land. This application coming on before Else-Mitchell J., he stated the following questions for the determination of this Court: - "1. Whether the Supreme Court of New South Wales has jurisdiction to entertain proceedings in ejectment for the recovery of possession of the said land from the said Myee Eva Anderson. 2. Whether judgment in ejectment for the recovery of possession of the said land from the said Myee Eva Anderson 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 of the State of New South Wales." (at p316)
2. Obvious difficulties in the way of the defendant's contentions are that when the action was commenced, the Commonwealth was not the lessor of the premises and the defendant was not the lessee, because before the action the tenancy had been effectively determined by notice to quit. This was so because, if for no other reason, the Landlord and Tenant (Amendment) Act, 1948-1958, which in the case of subject and subject restricts the giving and effectiveness of notices to quit in respect of prescribed premises, is expressed not to bind the Commonwealth (s. 5 (a)). It was argued, however, that for the purposes of this action, s. 64 of the Judiciary Act (Cth) requires the Commonwealth to be regarded as a subject and so bound by the Landlord and Tenant (Amendment) Act, notwithstanding the provision therein contained to the contrary. So it was argued that the Commonwealth is to be treated as a lessor, the defendant is to be treated as a lessee, and the action is incompetent by virtue of ss. 62 and 69 of the Landlord and Tenant (Amendment) Act, which confine proceedings by lessors against lessees in respect of prescribed premises to courts of petty sessions. (at p316)
3. However wide a meaning may be given to s. 64 of the Judiciary Act, I am satisfied that it has not the effect claimed. The section provides that in a suit to which the Commonwealth or a State is a party, the rights of the parties shall be as nearly as possible the same as in a suit between subject and subject. When the Commonwealth commenced its suit, it was not a lessor, the defendant was not a lessee, and the Supreme Court had jurisdiction to determine the suit. If the Commonwealth is to be treated as a subject for the purposes of the suit, there is no reason for treating it as a subject who is a lessor. Furthermore, to treat the Commonwealth as a subject could not transform the defendant from trespasser to lessee, unless s. 64 were to be taken as operating when the notice to quit was given - i.e., before the suit was commenced - to invalidate it ab initio. There is nothing in s. 64 to warrant this. Finally, it would be a strange result - which it would require clear words to bring about - that the commencing of a suit within the jurisdiction of a court should be the occasion for the court losing jurisdiction to hear and determine the action. I see no reason to attribute such an operation to s. 64 - which is not concerned with jurisdiction. (at p317)
4. The conclusions I have stated dispose of the defendant's contentions, although I am disposed to think that there may be other answers that could be made to them. I do not propose to consider these and content myself here with saying that I do not regard Asiatic Steam Navigation Co. Ltd. v. The Commonwealth [1956] HCA 82; (1956) 96 CLR 397 as authoritatively establishing that upon its true construction s. 64 means that in any proceeding within the judicial power or in any proceeding authorized by the Judiciary Act to which the Commonwealth or a State is a party, the law to be applied for the determination of the suit is that which would apply if the Commonwealth or the State were a subject. In that case, Fullagar J. (1956) 96 CLR, at p 424 expressed a contrary view, and the joint judgment of Dixon C.J., McTiernan and Williams JJ. (1956) 96 CLR, at p 417 seems to leave as an open question whether s. 64 is limited to questions of procedure or extends in itself to the substantive law governing the liability put in suit, inasmuch as it was said that the differences of view that had emerged as to this "are of little or no importance in the present case". Kitto J., after saying that "the conclusion seems inevitable that the rights referred to in s. 64 include the substantive rights to be given effect to in the suit" (1956) 96 CLR, at p 427 , did go on to say: "If that be so, it follows that s. 64 must be interpreted as taking up and enacting, as the law to be applied in every suit to which the Commonwealth or a State is a party, the whole body of the law, statutory or not, by which the rights of the parties would be governed if the Commonwealth or State were a subject instead of being the Crown" (1956) 96 CLR, at p 427 . A statement to the same effect appears later in the judgment (1956) 96 CLR, at p 428 . These statements seem to me to go further than those of the other members of the Court, and if what his Honour said does correctly state the meaning of s. 64, its validity would, I think, require consideration. As I have said, however, it is not necessary here to resolve all the problems of construction and validity to which s. 64 may give rise. (at p318)
5. It was further argued that the Commonwealth cannot maintain an action for ejectment but must proceed by way of information of intrusion. This I cannot accept. Whatever justification there was for the view that the King could not at common law sue in ejectment because to maintain such an action would be "inconsistent with his royal dignity and contradictory to the fiction of law that the King cannot be dispossessed of property once vested in him" (Chitty's Prerogatives of the Crown (1820), p. 245), I am satisfied that it can have no application to the Australian federation where the Crown is present in various rights; where the Crown in one right may claim from the Crown in another right; where the Commonwealth may be registered by a State as the proprietor of land: see Lands Acquisition Act 1955 (Cth), s. 15; and where there are statutes which authorize the Commonwealth and States to take proceedings for possession of land, e.g., Lands Acquisition Act 1955, s. 57. (at p318)
6. I consider, therefore, that the questions asked should be answered Yes. (at p318)
7. MENZIES J. This case is on all fours with The Commonwealth of Australia v. Anderson, and the questions asked should be answered in the same way for the same reasons. (at p318)
WINDEYER J. I agree that, for the reasons the Chief Justice has given, s. 64 of the Judiciary Act does not have the result for which the defendant contended. Its primary purpose, but perhaps not its only consequence, is, I think, to deprive the Commonwealth, when it is a litigant, of the privileges that by the common law the Crown had in proceedings between it and a subject. (at p318)
2. The defendant's other contention is that the Crown cannot bring an action of ejectment, its proper remedy being, it was said, an information of intrusion. This technical objection to the form of the proceedings by which the Commonwealth seeks to enforce its right may well arouse impatience. But if it be well founded it must be sustained, and the defendant given the benefit of whatever temporary respite she can thus gain. The defendant relied upon a passage in Chitty on The Prerogatives of the Crown (1820), p. 245: "The general rule is that the King may waive his prerogative remedies, and adopt such as are assigned to his subjects. He may maintain the usual common law actions, as trespass quare clausum fregit, or for taking his goods. The only exception seems to be in the case of actions which suppose an eviction or disseisin as an assize, or, it seems, an action of ejectment. The King cannot maintain such actions, they being inconsistent with his royal dignity, and contradictory to the fiction of law that the King cannot be dispossessed of property once vested in him". The argument did not explain why Chitty's rather hesitant statement about ejectment should to-day apply to an ejectment action under the Common Law Procedure Acts, 1899-1957 (N.S.W.), nor how in the present case there is any supposition that the Queen has been evicted or disseised from this land at Redfern, nor why it should be inconsistent with the royal dignity for the Commonwealth of Australia to gain possession of its land by legal proceedings in a form available to a subject, Parliament having by the Judiciary Act assimilated the position of the Commonwealth as litigant to that of a subject. Yet the validity of the defendant's objection depends upon the answers to these questions. So I turn first to examine the foundation for Chitty's statement that the Crown cannot maintain ejectment. Blackstone had said that "as therefore the king, by reason of his legal ubiquity cannot be disseised or dispossessed of any real property which is once vested in him, he can maintain no action that supposes a dispossession of the plaintiff such as an assize or an ejectment" (Commentaries, vol. 3, 257). This statement is more positive than Chitty's; but both go back to Brooke's Abridgment (1586), and to Stauneford's Exposition of the Kinges Praerogative (1590) where at c. 19 p. 58 it is said that: "as the king cannot take by gift from any person but by matter of record, no more may possession depart from him but by matter of record, and therefore his highness cannot have an assize or ejectione firme suae custodie, like as a common persons may have". Much later, in 1790, Eyre C.B. could say categorically that "you cannot try the Queen's title in an ejectment" (in Cawthorne v. Campbell, Lowndes & Others (1790) 1 Anst 205, at p 215 (145 ER 846, at p 850) ); but he, it seems, was there alluding to an attempt by a subject to recover land from the Crown by ejectment. That was not possible, because the Crown was not to be put out of possession by its own officer, the sheriff, on a writ of habere facias possessionem. The proper remedy for a subject was petition of right, or, anciently, monstrans de droit; then the judgment would of itself put the Crown out of possession "so that", as Blackstone put it, "there needs not the indecent interposition of his own officer to transfer the seisin from the king to the party aggrieved" (Commentaries loc. cit., and see Doe d. Logh v. Roe (1841) 8 M & W 579 (151 ER 1169) ). (at p319)
3. In New South Wales these questions arose in 1847 in The Attorney-General v. Brown (1847) 2 SCR Appendix 30 ; and two years later some further aspects were discussed in Doe d. Wilson v. Terry (1849) 2 SCR Appendix 1 . The notable judgment of Stephen C.J. in the former case established that the Crown could proceed by information for intrusions upon the Crown lands of New South Wales; and without office found. We were told that in recent times there have been informations of intrusion heard in New South Wales; although lately the Crown there has, we were told, sometimes brought ejectment. I think that the Crown in right of the State can still, if it wishes, proceed by information of intrusion in respect of Crown land or land that the Crown had acquired by resumption; and an office found is, I assume, unnecessary, at all events when the title is of record under the Real Property Act. The position of the Commonwealth is perhaps not so clear. But the question here is not, could an information of intrusion be brought by the Crown in right of the Commonwealth? It is, could the Commonwealth not maintain this action of ejectment? In The Attorney-General v. Brown (1847) 2 SCR Appendix 30 , Stephen C.J. stated the accepted doctrine: "Where the Queen is entitled, she is supposed to be in possession. The Crown cannot be disseised; nor can there be an occupant, as against the Crown (for any other purposes than those mentioned in the 21 Jac. I., c. 14), of any possessions of the Crown. The reason assigned is, that no subject can take from the Crown, except by record; and, therefore, a mere act in pais cannot avail a defendant. And, because the Queen cannot be supposed to be out of possession, she cannot have ejectment; or other remedy, which is founded on or supposes an eviction" (1847) 2 SCR Appendix, at p 36 . For this he cited Bacon's Abridgment and Viner's Abridgment as well as Chitty, and 12 East 10. The last citation is a misprint; what was meant being presumably Doe d. Hayne and His Majesty George III v. Redfern [1810] EngR 101; (1810) 12 East 96 (104 ER 39) . That is a noteworthy decision in which an ejectment failed, but not because the real plaintiff was the King, but because there the alleged demise to Doe would have been contrary to 18 Hen. VI. c. 6. (at p320)
4. Although it is trite to say so, it is important to remember that ejectment is not so called because it is a process whereby a plaintiff seeks to have the defendant ejected from his land. It got its name because it was an action in which the plaintiff complained that he had been wrongfully ejected by the defendant from land of which he was rightfully possessed. For this he claimed damages in an action of trespass de ejectione firmae. The plaintiff was a lessee, for a term of years, a fermor. His complaint was that he had been ousted by the defendant, vi et armis, from his ferm or farm. A freeholder could not bring this action. A freeholder who was disseised had to bring a real action. This action de ejectione firmae, of the more humble leaseholder who had been ousted, originally only enabled him to recover damages and mesne profits lost; he could not by it get back into possession. But from the time of Henry VII, perhaps from much earlier, a successful plaintiff in ejectment could have a writ of habere facias possessionem directing the sheriff to restore him to possession of the land for the remainder of his term. This corresponded with the habere facias seisinam by which a freeholder who had judgment in a real action, such as an assize of novel disseisin, could have his estate restored to him (See Reeves, History of English Law (1787), vol. 4, pp. 164-170). The rest of the story is well known. The freeholder by enlisting the aid of friends - who in time became fictitious persons - could use the leaseholder's remedy and avoid the pitfalls and delays of a real action. After Rolle, who was Chief Justice under Cromwell, had worked out the elaborate device, an ordinary ejectment action was no longer in reality a complaint by a lessee who had been turned out of possession. It was a process by which a landowner could recover his land or establish his title. The nominal plaintiff was one of those ever ready brothers in the law Doe or Roe or of their friends Goodright, Goodtitle or Fairclaim against some obliging casual ejector, Styles, Shamtitle or Thrustout. The old writ de ejectione firmae had then indeed, in the words of Wilmot C.J., been "licked into the form of a real action" (Goodtitle v. Tombs [1770] EngR 9; (1770) 3 Wils KB 118, at p 120 [1770] EngR 9; (95 ER 965, at p 967) ). But it was still a writ of trespass. The allegation, formal and false, on which it depended was that the nominal plaintiff Doe, the lessee of the real plaintiff, had been ejected by the casual ejector, who had retired from the contest leaving the real defendant to defend the action, he being allowed to do so only on admitting lease, entry and ouster and contesting only the question of title. (at p321)
5. Turning now to the position of the King in all this: In the last edition of Halsbury's Laws of England, vol. 7, p. 248, there still appears the statement that an action of ejectment is inconsistent with the royal dignity, because "contrary to the legal fiction that the Crown can never be dispossessed". No later authority than Blackstone is given. Is the statement correct to-day? In early days the King needed a remedy for gaining possession of lands. Much feudal law, for example that concerning escheats, wardships, year and a day waste and other matters, depended upon the King being able to establish his right to possession of land when he was out of possession. It is not necessary here to consider - nor would I have any confidence in doing so - the nice distinctions and the mysterious, in some ways almost mystical, doctrines of the early common law concerning possession and seisin (See Reeves, History (1787) vol. i, pp. 319, 320; Plucknett, A Concise History of the Common Law 5th ed. (1956) pp. 357, 358, 570-574 et passim and references there given; Maitland, The Mystery of Seisin and The Beatitude of Seisin; Pollock & Wright, Possession in the Common Law (1888) pp. 81 et seq). The rule of the feudal law is, for present purposes, sufficiently summarized in Runnington on Ejectment, 2nd ed. (1795) p. 7, as follows: "Nobody can disseise the king; neither can anyone be disseised to the use of the king. The king may be wrongfully dispossessed; but the intruder's injurious possession is sine aliquo vestimento, and called intrusion". The word intrusion had two meanings in early law. They are explained in Coke on Littleton, s. 475: "Intrusion, first properly, is when the Ancestor died seised of any estate of inheritance expectant upon an estate for life, and the Tenant for life dieth, and between the death and the entry of his Heir an estranger doth interpose himself and intrude. Secondly he that entreth upon any of the King's Demesnes, and taketh the profits is said to intrude upon the King's possession". It was the latter happening that could be the occasion of a Latin information of intrusion, the form of proceeding that it is said should have been adopted by the Commonwealth. Chitty and others, following a case in Savile p. 48, described it as "in the nature of an action of trespass quare clausum fregit". Here it is enough to say that, whereas trespass in ejectment lay for an actual ouster of the plaintiff from possession, quare clausum fregit lay for an invasion of the plaintiff's land and damage to that land - the ordinary trespass of modern law - rather than for a dispossession. And so too an information of intrusion did not allege a dispossession. The judgment for the King in intrusion was that the defendant be amoved, not that the King be put into possession; and execution was by amoveas manus not by habere facias seisinam or habere facias possessionem (Halsbury's Laws of England 2nd ed. vol. 9, p. 664). Much learning concerning informations of intrusion is collected in the arguments of counsel very fully reported in The Attorney-General v. Lord Churchill, [1841] EngR 581; (1841) 8 M & W 171 (151 ER 997) , and in the notes to Porter's Case [1592] EngR 4; (1592) 1 Co Rep 16 b [1592] EngR 4; (76 ER 36) . (at p322)
6. After giving such consideration as I have been able to give to everything that I have found favourable to the present defendant in all this, I think her objection fails. In the report of Porter's Case [1592] EngR 4; (1592) 1 Co Rep 16 b (76 ER 36) the information there laid is set out. The relevant part, after alleging the lands in question were "in the hands and possession of the said lady the now Queen, the 26th day of January in the 34th year of her reign, and long before, and continually afterwards were and stood, and of right ought to be as in the right of her Crown of England, as . . . more fully appeareth of record" yet the defendants, "the laws of the said lady the now Queen little regarding, but intending the disinherison of the same lady the Queen in the premises, with force and arms, etc. the said 26th day of January . . . in and upon the possession of the said lady the now Queen of the premises entered, intruded, and made entry, and the issues and profits thereof arising, took and had to their own uses, and do yet take and have, the trespass aforesaid hitherto and yet continuing, in contempt of the said lady the now Queen, and contrary to her laws . . . ". These allegations were not inconsistent with the royal dignity. The difference between them and the statements in the original writ of ejectio firmae may seem insignificant. A specimen of the writ, as it appears in the Register, is given in Sir William Holdsworth's A History of English Law, 4th ed. (1935) vol. iii, p. 662. It alleged that the defendant had, by force and arms during the currency of the plaintiff's term, entered, carried away his goods and cattle, ejected him from his farm and other enormities done him, to his grave damage and against the King's peace. Slight as the differences in language may seem to-day, the allegations in intrusion could properly be made by the Crown. Those in ejectment could not. Yet, even allowing for the persistence of ancient theory in modern times, it is hard to see why in the first half of the nineteenth century an allegation that Doe, a tenant of the King, had been turned off his land by Roe, a casual ejector, was inconsistent with the royal dignity. Serjeant Adams, the fourth edition of whose work on Ejectment appeared in 1846, thought it was not (p. 56). "It was formerly doubted" he said, "whether an ejectment could be maintained by the King, because an ejectment is for an injury done to the possession, and the King cannot be put out of possession. But this reasoning seems only to apply where the King is made plaintiff, and not where he is the lessor of the plaintiff, for it is the lessee, and not the lessor, who by the legal fiction is supposed to be ousted". This seems to me convincing. I think therefore that the Crown could have taken advantage of the procedure in ejectment before the Common Law Procedure Act. That Act was designed to rationalize the law and to banish Doe and the casual ejector from the courts, but without undoing the good work they had done. Are we to say then that it put the Crown back into its feudal fetters, that what the King could have done with the aid of Doe he could not now do for himself; I think not. It is correctly said in the Introduction to Day on The Common Law Procedure Acts (1861) that the Act of 1852 "abolished the ancient action of trespass and ejectment, in which John Doe complained of the doings of Richard Roe, and it supplied in its place a new and more simple mode of trying the title to real estate. It provided, however, that the effect of a judgment in the new action should be the same as the effect of a judgment in the old". The Act was adopted in New South Wales by 17 Vict. No. 21, which came into force on 1st January 1854. Its purpose and effect appears from s. 119: "Instead of the present proceeding by ejectment a writ shall be issued directed to the persons in possession by name and to all persons entitled to defend the possession of the property claimed which property shall be described in the writ with reasonable certainty". And s. 159 provided that "the effect of a judgment in an action of ejectment under this Act shall be the same as that of a judgment in an action of ejectment heretofore". The corresponding provisions of the Common Law Procedure Acts, 1899-1957, the statute now in force in New South Wales, are in substance the same as those that came into operation in 1854. So that surely what the Crown could have got by the assistance of Doe before 1853, the Crown can now get under the Act? An action of ejectment to-day does not suppose that the Queen has been evicted. The writ is directed to persons in possession. That means, I think, "actual possession" rather than "possession in law" in the contrasting senses defined in the Termes de la Ley. With this meaning the writ is not, I consider, inconsistent with whatever doctrine may still prevail that the Queen cannot be dispossessed by matter in pais. The modern action of ejectment bears an ancient name. Its ancestry goes back to the writ ejectio firmae. But that does not mean that the modern law must carry mediaeval impedimenta. Here the Commonwealth of Australia is the plaintiff. The Crown in right of the Commonwealth brings the action. But it is not asserting rights under feudal law. The Commonwealth acquired this land for the purposes of the Post Office. It acquired it pursuant to the Lands Acquisition Act 1906-1936, s. 57 (1). By that section the Commonwealth held the land as a body corporate, as it does now (see s. 61 of the present Act). As a matter of title it holds it as a tenant in fee simple of the Crown in right of the State of New South Wales. Tenancy in fee simple here describes, not a feudal relationship of the Queen and those who hold land of her, but the nature and quantum of the estate and interest that the Commonwealth has in the land. That use of the term is not new: see Cruise's Digest 4th ed. i, 54; The Commonwealth v. New South Wales [1923] HCA 34; (1923) 33 CLR 1, at p 42 ; for "the king or a corporation may be seised of a less estate than a fee simple" 1 Wms. Saund. 187 (85 E.R. 187). . (at p325)
7. The defendant's insistence that, for the honour of the Crown, she should have been proceeded against by information of intrusion has enticed out of the past a most stubborn ghost. But it is quite time it was laid; and the Queen's dignity will not suffer. (at p325)
8. I agree in the order proposed by the Chief Justice. (at p325)
9. WINDEYER J. I need add nothing to what I said in The Commonwealth v. Anderson. I agree in the order the Chief Justice proposes. (at p325)
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.