Burkard v Oakley

In the High Court of Australia, Louis Burkard brought an action against Robert McKeenan Oakley, the Commonwealth Public Trustee, and his delegate, William Henry Barkley. The dispute concerned the validity of the sale of 5,250 shares in Whipstick Mines Ltd. that had been transferred to the Public Trustee under the War Precautions (Enemy Shareholders) Regulations 1916. Burkard, a German national interned during the war, claimed that he held a beneficial interest in these shares jointly with a Belgian subject, Mr. De Leeuw, and that the regulations did not authorise the sale of shares in which a non-enemy subject held an interest.

The legal issues before the Court were whether the War Precautions (Enemy Shareholders) Regulations authorised the sale of Burkard's interest in the shares, whether the regulations were valid in so far as they purported to authorise such a sale, and whether the underlying Acts authorising the regulations were valid in this respect. A preliminary objection was raised by the defendants regarding the competency of the action due to the Treaty of Peace Act 1919 and associated regulations.

The Court, applying the principles established in *Burkard v. Oakley* (1920) 25 CLR 422, held that Regulation 11(2) of the War Precautions (Enemy Shareholders) Regulations 1916 did authorise the sale of shares transferred to the Public Trustee, even if a beneficial interest was held by a non-enemy subject. The Court found that the regulations were a valid exercise of the power conferred by the War Precautions Act 1914-1916. The Court was of the view that the regulations were intended to apply to shares registered in the name of an enemy subject, irrespective of who held the beneficial interest, and that the Public Trustee had the sole control and disposal of such shares.

The Court answered the questions of law posed in the special case. Questions (1), (2), (3), and (4) were answered in the negative, while questions (5), (6), and (7) were answered in the affirmative. Costs were to be costs in the action.