National Security (Contracts Adjustment) Regulations (Cth)

STATUTORY RULES.

1942. No. 65.

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REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940.*

I, THE GOVERNOR-GENERAL in and over the Commonwealth of Australia, acting with advice of the Federal Executive Council, hereby make the following Regulations under the National Security Act 1939-1940.

Dated this thirteenth day of February 1942.

(SGD.) GOWRIE.

Governor-General.

By His Excellency’s Command,

for and on behalf of the Minister of State for Defence Co-ordination.

 

National Security (Contracts Adjustment) Regulations.

Citation

1. These Regulations may be cited as the National Security (Contracts Adjustment) Regulations.

Administration

2. These Regulations shall be administered by the Attorney-General.

Definitions.

3.—(1.) In these Regulations, unless the contrary intention appears—

“respondent”, in relation to any application, means any party to the contract or agreement the subject of the application other than the applicant;

“Territory” means Territory of the Commonwealth;

“the Registrar ”, in relation to a tribunal, means the Clerk, Prothonotary, Registrar or other principal officer of the tribunal;

“tribunal”, in relation to any application, means—

(a) where the matter at issue does not exceed in value Two hundred pounds and the respondent resides or carries on business—

(i) in a State (other than the State of Tasmania) or in the Northern Territory or the Australian Capital Territory—a court of limited civil jurisdiction constituted by a Police, Stipendiary or Special Magistrate in the State or Territory in which the respondent resides or carries on business;

 

* Notified in the Commonwealth Gazette on , 1942

709.—25/12.2.1942.—Price 5d.

 

(ii) in the State of Tasmania—a Court of Requests;

(iii) in the Territory of Papua—a court of limited civil jurisdiction in that Territory;

(iv) in the Territory of New Guinea—a District Court in that Territory; and

(v) in Norfolk Island—the Court of Norfolk Island sitting in its Full Jurisdiction; and

(b) where the matter at issue exceeds in value Two hundred pounds—

(i) a District Court, County Court or Local Court of Full Jurisdiction in the State or Territory in which the respondent resides or carries on business;

(ii) if there is no such court or the respondent resides or carries on business in the Territory of New Guinea—except in the State of Tasmania, the Supreme Court of the State or Territory in which the respondent resides or carries on business;

(iii) if the respondent resides or carries on business in the State of Tasmania—a Court of Requests constituted by a barrister, solicitor, attorney or proctor; or

(iv) if the respondent resides or carries on business in Norfolk Island—the Court of Norfolk Island sitting in its Full Jurisdiction.

(2.) If, on any application to a tribunal under these Regulations, any objection is taken to the jurisdiction of the tribunal based on the value of the matter at issue, the tribunal shall determine the objection summarily, but the decision of the tribunal shall not operate as an estoppel between the parties or other privies in any other proceedings.

Adjustment of contracts.

4. Where a tribunal is satisfied, on application by any person, that, by reason of circumstances attributable to the war or the operation of any regulation made under the National Security Act 1939 or under that Act as subsequently amended, the performance, or further performance, of a contract or agreement to which that person is a party, in accordance with the terms thereof, has become or is likely to become impossible or, so far as the applicant is concerned, has become or is likely to become inequitable or unduly onerous, the tribunal may make an order cancelling the contract or agreement or may make such order as it thinks just varying the terms of the contract or agreement, or may provide for the repayment, in whole or in part, of any amount paid in pursuance of the contract or agreement.

 

Revival of contracts.

5. Where any party to a contract or agreement has rescinded the contract or agreement by reason of the default of the other party thereto in the performance of any term or provision thereof and a tribunal is satisfied, on application by that other party, that the default was due to circumstances attributable to the war or the operation of any regulation made under the National Security Act 1939 or under that Act as subsequently amended, the tribunal may make an order reviving the contract.

Orders may be made subject to terms and conditions, &c.

6. An order under either of the last two preceding regulations—

(a) may be made subject to such terms and conditions (including conditions as to payment of interest) as the tribunal thinks fit; and

(b) may provide for the cancellation of a contract or agreement, or for the variation of the terms thereof, or for the revival thereof, as from a date prior to the making of the order.

Rescission or revocation of orders.

7.—(1.) Where a tribunal has made an order in pursuance of regulation 4 or 5 of these Regulations, any party to the contract or agreement in respect of which the order was made may make application to the tribunal for the rescission or variation of the order.

(2.) The tribunal may, if it thinks fit, on any such application, rescind or vary the order, or make any order which it might have made in the first instance.

(3.) The tribunal shall not rescind or vary any order, or make any order in pursuance of this regulation, unless it is satisfied that, in all the circumstances of the case, it is inequitable that the order previously made should continue in force either at all or without variation.

Interlocutory and final orders may be made.

8. The tribunal may make all such interlocutory and final orders in the matter of an application under these Regulations (including orders as to costs) as, having regard to the objects of these Regulations and the circumstances of the case, the tribunal considers to be just.

Tribunal to decide according to equity and good conscience.

9. In exercising its powers under these Regulations, a tribunal shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of evidence, but may inform its mind on any matter in such manner as it thinks just.

Hearing in chambers.

10. Any application under these Regulations may be disposed of in chambers.

Costs.

11. The costs of any application under these Regulations shall be in the discretion of the tribunal.

Intervention by Attorney General.

12. The Attorney-General may, at any stage of any application under these Regulations, intervene by counsel or agent, on behalf of the Commonwealth, and may examine witnesses and address the tribunal.

Representation by counsel, &c.

13. A party shall not, without the consent of all the parties or unless the Attorney General has intervened by counsel, be represented by counsel or solicitor or paid agent.

Compliance with orders.

14. All orders under these Regulations shall be of full force and effect and shall be complied with by the parties to the contract or agreement concerned.

Manner of making application.

15.—(1.) An application under these Regulations shall be made in writing to the Registrar of the tribunal and shall be accompanied by a statutory declaration giving full particulars of—

(a) the name, address and occupation of the applicant;

(b) the name, address and occupation of the respondent;

(c) the terms of the contract or agreement in respect of which the application is made;

(d) the nature of the order sought; and

(e) the circumstances on which the applicant relies in support of the application,

and shall be accompanied by a true copy of the application for endorsement and service as prescribed.

(2.) Upon receipt of such an application the Registrar shall appoint a time for the hearing thereof and shall endorse on the true copy of the application the place and time of hearing and return it to the applicant.

(3.) The applicant shall serve the true copy of the application, together with a true copy of the statutory declaration, upon the respondent in the same manner as a writ of summons or other like originating proceeding of the tribunal to which the application is made may be served.

(4.) Upon service of the true copy of the application so endorsed, and until the application is determined by the tribunal, no action, execution, process or proceeding, whether judicial or extra-judicial, in respect of the contract or agreement to which the application relates shall, without leave of the tribunal, be commenced or proceeded with or put in force against any party to the contract or agreement or any property, estate, interest, effects or assets of any such party.

Order of tribunal final.

16. Subject to regulation 7 of these Regulations, any order of a tribunal determining an application under these Regulations shall be final and no order, whether interlocutory or final, in the matter of any such application, and no other proceedings under these Regulations (including a determination as to the value of the matter at issue in any application) shall be appealed against, questioned or reviewed in any manner whatsoever, or be restrained or removed by prohibition, injunction, certiorari or otherwise.

Period of postponement, &c., not to be taken into account for the purposes of any Statute of Limitations.

17. In calculating the time fixed by law in force in Australia within which any action may be commenced or other remedy pursued, account shall not be taken of any period during which the payment of any money is postponed, or during which any proceedings, or proposed proceedings, are stayed, prohibited or suspended, in pursuance of these Regulations.

Authority to trustees, &c., to vary contracts.

18.—(1.) Notwithstanding anything to the contrary contained in any law in force in Australia, every trustee is, by force of this regulation, where he considers it reasonable to do so by reason of circumstances attributable to the war or the operation of any regulation made under the National Security Act 1939 or under that Act as subsequently amended, authorized and empowered to agree to the cancellation or revival of any contract or agreement to which he is a party or to agree to the variation of the terms of any such contract or agreement.

(2.) No action, suit or other proceeding shall be commenced, prosecuted or maintained against any trustee upon the ground of any action taken by him in pursuance of this regulation.

(3.) In this regulation, “trustee” means any person appointed by act of parties or by operation of law, or authorized by or under any law in force in Australia, to act as a trustee, and includes—

(a) any director, any member of the council of management or governing body of, and any person charged either alone or with others with the management or government of, and any liquidator of, any company so appointed or authorized or of any other company; and

(b) any person acting in any fiduciary capacity whatsoever.

Validation.

19.—(1.) Subject to this regulation, no action, execution, process or proceeding shall be invalidated by reason only that it has been commenced, proceeded with or put in force in contravention of these Regulations, but nothing in this regulation shall affect the liability of any person to a penalty in respect of any such contravention.

(2.) The appropriate Court may, on the application of the Attorney-General or of any person interested, make an order that an action, execution, process or proceeding commenced, proceeded with or put in force in contravention of these Regulations shall be invalidated, but the Court shall not make any such order if the Court is satisfied that the effect of the order (if made) would be to prejudice the rights of a person in respect of, or arising out of, the action, execution, process or proceeding which have been acquired bona fide and without notice of the contravention.

(3.) In this regulation, “ the appropriate Court ” means the High Court, or the Supreme Court of the State or Territory in which the action, execution, process or proceeding was commenced, proceeded with or put in force.

Saving of common law rights.

20. The right to take proceedings under regulation 4 or 5 of these Regulations in respect of any contract or agreement shall be in addition to any right or remedy which, apart from these Regulations, may be exercised on the ground that the performance, or further performance of the contract or agreement has become or is likely to become impossible or has become or is likely to become unduly onerous.

 

By Authority: L. F. Johnston, Commonwealth Government Printer, Canberra.