Burkard v Oakley

In an action before the High Court of Australia, Louis Burkard, an enemy subject interned by military authorities, sought an injunction against Robert McKeenan Oakley, the Commonwealth Public Trustee, and William Henry Barkley, a delegate of the Public Trustee. Burkard claimed to be the registered holder, or entitled to be registered, of 5,250 shares in Whipstick Mines Limited. He sought to restrain the defendants from selling these shares and to have clause 2 of regulation 11 of the War Precautions (Enemy Shareholders) Regulations 1916 declared invalid.

The central legal issues before the Court were the validity of regulation 11(2) of the War Precautions (Enemy Shareholders) Regulations 1916, and whether the War Precautions Act 1914-1916, insofar as it purported to authorise this regulation, was within the constitutional defence power of the Commonwealth Parliament. The plaintiff also questioned the materiality of his alleged beneficial interest in the shares, which he claimed was mortgaged to a Belgian subject.

The Court, comprising Griffith C.J., Barton J., Gavan Duffy J., Powers J., and Rich J., unanimously held that regulation 11(2) was a valid exercise of the power conferred by section 4 of the War Precautions Act 1914-1916 and was within the defence power. The judges reasoned that the power to transfer shares of enemy subjects to the Public Trustee, established by regulation 9, was not challenged. They found that authorising the Public Trustee to sell these shares was a reasonable and incidental measure for public safety and the defence of the Commonwealth. This power allowed for the effective control and disposal of enemy assets, preventing potential losses to the Commonwealth or the enemy shareholder, and avoiding complications such as the winding up of companies due to insufficient shareholders.

Consequently, the Court answered the first two questions posed in the special case in the negative, finding regulation 11(2) and the relevant provisions of the War Precautions Act to be valid. The third question regarding the materiality of the plaintiff's alleged interest was not answered. The plaintiff was ordered to pay the costs of the special case.