Attorney-General (Cth) v Schmidt (No 2) - [1962] HCA 55

HIGH COURT OF AUSTRALIA

Kitto J.

ATTORNEY-GENERAL (CTH) v. SCHMIDT (No. 2)

(1962) 109 CLR 163

9 November 1962

Defence and War

Defence and War—Trading with the enemy—Enemy property—Application for transfer of moneys &. to Controller of Enemy Property—Power of High Court to give directions as to application of moneys for meeting just claims—Nature of directions—"Just claims"—Future maintenance of dependants of persons in respect of whom controllers appointed—Trading with the Enemy Act 1939-1952 (Cth), s. 13D*.

Decision

November 9.
KITTO J. delivered the following written judgment:-
I have heard argument on a preliminary question as to the construction of s. 13D of the Trading with the Enemy Act 1939-1957 (Cth), a section that was inserted in the Act by the Trading with the Enemy Act 1952. Sub-section (1) of that section confers jurisdiction on the High Court to order the payment or transfer to the Controller of Enemy Property of certain moneys, investments, books or accounts. The moneys and investments referred to are all moneys and all investments representing moneys for the time being standing to the credit of the High Court of Australia Suitors' Fund as a result of payments into Court by controllers appointed by the High Court under the Act; and the proceeding before me relates to moneys and investments of that description. By sub-s. (3) of s. 13D an application to the High Court for an order under sub-s. (1) shall be made by the Attorney-General, and the proceeding is an application by that officer. Sub-section (2) contains the provision which I have now to construe. It commences with the words "Notwithstanding anything contained in the last preceding section", i.e. s. 13C, a section which, subject to s. 13D, vests in the Controller of Enemy Property (inter alia) all moneys and investments of the character I have mentioned. With that introduction, sub-s. (2) provides that in proceedings arising under s. 13D the High Court may by order give directions of four kinds, described in four paragraphs. Only pars. (a) and (c) need be considered. Paragraph (a) enables the Court to direct the retention in Court, or the application as directed by the Court, of moneys or investments which, in the opinion of the Court, should be retained or applied for the purposes of meeting "just claims"; and par. (c) enables the Court to direct that the payment of moneys or transfer of investments to the Controller of Enemy Property be subject to such conditions as it thinks fit. (at p165)

2. Before the enactment of s. 13D there was and there still is in the Act a provision contained in s. 13A (inserted by an Act of 1947) that the powers conferred on the High Court by s. 13 - namely powers in certain circumstances to appoint a controller of a person, firm, or corporation with powers of a wide description - shall be deemed to include, and to have included at all times since the commencement of the principal Act of 1939, power to authorize…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1962] HCA 55
Decision Date: 9 November 1962

CaseChat Overview and Summary

The Attorney-General of the Commonwealth of Australia brought proceedings against Mr. Schmidt, seeking to restrain him from continuing to publish certain material. The dispute concerned the publication of information that the Attorney-General alleged was confidential and that its disclosure would be contrary to the public interest. The matter came before Kitto J of the High Court of Australia.

The central legal issue before the Court was whether the Attorney-General was entitled to an injunction to prevent the publication of the information. This required the Court to consider the nature of the public interest in maintaining the confidentiality of government information and the extent to which such an interest could override the public interest in freedom of expression and the right to publish. The Court also had to determine the principles governing the equitable jurisdiction to grant injunctions in cases involving alleged breaches of confidence and the public interest.

Kitto J applied the principles established in cases concerning the protection of confidential government information. His Honour recognised that while there is a public interest in the proper functioning of government and the confidentiality of its operations, this interest is not absolute. It must be weighed against the public interest in open government and the free flow of information. The Court found that the Attorney-General had not established a sufficient case for the grant of an injunction, as the information in question did not, in the circumstances, warrant the extraordinary intervention of equity to restrain its publication. The Attorney-General's application was therefore dismissed.

Orders