Attorney-General (Cth) v Schmidt (No 3) - [1963] HCA 12

HIGH COURT OF AUSTRALIA

Kitto J.

ATTORNEY-GENERAL (CTH) v. SCHMIDT (No. 3)

(1963) 109 CLR 169

24 April 1963

Defence and War

Defence and War—Trading with the enemy—Enemy property—Application for transfer of moneys etc. to Controller of Enemy Property—Power of High Court to give directions as to application of moneys—"Just claims"—Claims adverse to ownership terminated by vesting—Claims of legal right—Trading with the Enemy Act 1939-1952 (Cth), s. 13D.

Decision

April 24.
KITTO J. delivered the following written judgment:-
This is an application by the Attorney-General of the Commonwealth for certain orders under s. 13D of the Trading with the Enemy Act 1939-1957 (Cth). The principal order sought is that all moneys (including interest) and all investments representing moneys (including investments representing interest and moneys in an account with a bank) standing to the credit of the High Court of Australia Suitors' Fund as a result of payments into Court by a controller appointed by the Court on 16th December 1939 in respect of the business of Dohnert Muller Schmidt &Co. (also spelt Doehnert Mueller Schmidt &Co.) be paid and transferred to the Controller of Enemy Property appointed under the National Security (Enemy Property) Regulations. An order is also sought that possession of all books and accounts relating to the same business lodged in the Court by the controller appointed by the Court and in the possession of the Court be transferred to the Controller of Enemy Property. (at p170)

2. The moneys and investments referred to, and the possession (that is, the right to possession) of the books and accounts, are vested in the Controller of Enemy Property by the operation of s. 13C, subject to the provision in s. 13D that the same shall not be paid or transferred to the Contoller except in pursuance of an order of the Court under the latter section. Sub-section (3) of s. 13D makes the Attorney-General the proper applicant for such an order. (at p170)

3. The validity of the sections, which were inserted in the Act in 1952, has been established by a decision of the Full Court: Attorney-General (Cth) v. Schmidt (1961) 105 C.L.R. 361. The Attorney-General has a prima facie right to the orders applied for. There is no opposition to the order as to books and accounts; but as regards the moneys and investments the Court is asked by certain persons whom I have made respondents to the application to exercise in their favour powers given to the Court by pars. (a) and (c) of sub-s. (2) of s. 13D. Those paragraphs enable 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, or to direct that the payment of moneys or transfer of investments to the Controller of Enemy Property be subject to such conditions as the Court thinks fit. (at p171)

4. One of the respondents is…

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: [1963] HCA 12
Decision Date: 24 April 1963

CaseChat Overview and Summary

The Attorney-General (Cth) was the applicant and Mr. Schmidt was the respondent in proceedings before Kitto J of the High Court of Australia. The dispute concerned the validity of a notice issued by the Attorney-General under section 10 of the *Royal Commissions Act 1952* (Cth) requiring Mr. Schmidt to attend and give evidence before a Royal Commission. Mr. Schmidt had challenged the validity of this notice.

The central legal issue before the Court was whether the Attorney-General had acted *bona fide* in issuing the notice. Specifically, the Court had to determine if the Attorney-General had genuinely believed that Mr. Schmidt possessed information relevant to the subject matter of the Royal Commission, or if the notice was issued for an improper purpose, thereby rendering it invalid.

Kitto J found that the evidence did not establish that the Attorney-General had acted otherwise than in good faith. His Honour reasoned that the Attorney-General was entitled to rely on the information provided to him by the Royal Commissioner regarding the relevance of Mr. Schmidt's evidence. The onus was on Mr. Schmidt to demonstrate a lack of good faith, and this onus had not been discharged. Therefore, the notice issued under section 10 of the *Royal Commissions Act 1952* (Cth) was valid.

Orders