National Security (Courts Emergency Powers) Regulations (Cth)

STATUTORY RULES.

1939. No. 165.

 

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939.*

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

Dated this sixth day of December, 1939.

(SGD.) GOWRIE.

Governor-General.

By His Excellency’s Command,

Minister of State for Defence Co-ordination.

 

National Security (Courts Emergency Powers) Regulations.

Citations.

1. These Regulations may be cited as the National Security (Courts Emergency Powers) Regulations.

Definitions.

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

“female dependant”, in relation to a member of the forces, means any female who is wholly or partly dependent for her support upon the pay, or upon a pension payable in consequence of the incapacity or death, of a person who is or has been a member of the forces;

“judgment” means any judgment or order of any court (whether given or made before, on or after the date upon which these Regulations came into operation) for the payment or recovery of a sum of money or for the recovery of possession of land in default of payment of rent, but does not include—

(a) any judgment for the recovery of damages for tort;

(b) any affiliation or maintenance order; or

(c) any order made either in criminal proceedings or in proceedings for the recovery of a penalty in respect of any contravention of or failure to comply with the provisions of any law of the Commonwealth or of a State or Territory of the Commonwealth;

 

* Notified in the Commonwealth Gazette on , 1939.

7101.—8/29.11.1939.—Price 5d.

“legal remedy” means any remedy by way of—

(a) the levying of distress;

(b) the taking of possession of any property (except as provided in regulation 8 of these Regulations) or the appointment of a receiver of any property;

(c) re-entry upon any land;

(d) the realization of any security or the forfeiture of any deposit; or

(e) the rescission of any agreement for the sale and purchase of land;

“member of the forces” means a member of the Defence Force who is on war service, and includes any female dependant of any such member.

(2.) For the purposes of these Regulations, a person entitled to the benefit of a judgment who issues a bankruptcy notice or presents a bankruptcy petition founded on the non-payment of money due under that judgment shall be deemed to be proceeding to the enforcement of that judgment.

Regulations bind the Crown.

3. These Regulations shall bind the Crown in right of the Commonwealth or of any State and any authority or statutory body representing the Crown in right of the Commonwealth or of any State.

Contracts entered into after commencement of Regulations.

4.—(1.) These Regulations shall not apply to any judgment for the recovery of a debt which has become due by virtue of a contract made on or after the date upon which these Regulations came into operation, or to any judgment given in proceedings for the enforcement of any such contract, or to any legal remedy or power available in consequence of any default in the payment of a debt or the performance of an obligation arising by virtue of any such contract.

(2.) For the purposes of this regulation a contract shall be deemed to have been made before the date upon which these Regulations came into operation if an offer made before that date so as to be binding on a contracting party, if accepted within a specified period expiring on or after that date, is accepted by the contracting party at any time within that period.

Restriction on execution and other remedies.

5.—(1.) Subject to the provisions of these Regulations, no person shall be entitled, except with the leave of the appropriate court, as provided in the next succeeding regulation, to do or to continue or complete the doing of any of the following acts:—

(a) to proceed to execution on or otherwise to the enforcement of any judgment against a member of the forces;

(b) to exercise any legal remedy in consequence of any default in the payment of a debt or the performance of an obligation by a member of the forces;

(c) to call up or demand payment of the principal sum or any part of the principal sum secured by any mortgage entered into by a member of the forces;

(d) to exercise the power of sale conferred by any mortgage entered into by a member of the forces;

(e) to institute, or take any step in, proceedings for foreclosure in respect of any mortgage entered into by a member of the forces; or

(f) to institute, or take any step in, proceedings in any court for breach of any covenant expressed or implied in any mortgage entered into by a member of the forces, other than a covenant for the payment of interest.

(2.) Nothing in this regulation shall affect—

(a) any power of sale of a mortgagee of land or an interest in land who was in possession of the mortgaged property at the date upon which these Regulations came into operation, or who has appointed a receiver who at that date was in possession of the mortgaged property or in receipt of the rents and profits thereof;

(b) any power of sale of a mortgagee in possession of property other than land or some interest in land, where the power of sale arose and notice of the intended sale was given before the date upon which these Regulations came into operation;

(c) any right or power of pawnbrokers to deal with pledges; or

(d) the institution or prosecution of any proceedings for the appointment by any court of a receiver of any property or for the recovery of possession of land otherwise than in default of payment of rent.

Applications for leave of Court.

6.—(1.) Application may be made to the appropriate court for leave to do or to continue or complete the doing of any act specified in sub-regulation (1.) of the last preceding regulation.

(2.) For the purposes of this regulation, the appropriate court shall be—

(a) in relation to any act specified in paragraph (a) of sub-regulation (1.) of the last preceding regulation, the court by which the judgment was given;

(b) in relation to any act specified in paragraph (b) of sub-regulation (1.) of the last preceding regulation, the court having jurisdiction in respect of the amount claimed or the value of the property concerned;

(c) in relation to any act specified in paragraph (c),(d) or (e),of sub-regulation (1.) of the last preceding regulation, the High Court or the Supreme Court of the State or Territory concerned; or

(d) in relation to any act specified in paragraph (f) of sub regulation (1.) of the last preceding regulation, the court in which the proceedings were taken or in which such proceedings may, except as provided by these Regulations, be instituted.

(3.) If, on any application for leave made in accordance with the provisions of this regulation, the court is of opinion that the member of the forces liable to satisfy the judgment, pay the debt or perform the obligation in question is unable immediately to do so by reason of circumstances directly or indirectly attributable to his service during the present war, the court may refuse leave or grant leave subject to such restrictions or conditions as the court thinks fit.

(4.) An application for the leave of the court under this regulation may be made by motion, with notice to such persons as the court considers entitled thereto, or ex parte in any case in which by reason of special circumstances the court considers such procedure to be just and equitable.

(5.) Any application for the leave of the High Court or a Supreme Court under this regulation may be made to and disposed of by a Justice or Judge in Chambers.

Bankruptcy proceedings against a member of the forces.

7. Where a bankruptcy petition has been presented against any member of the forces on the ground that he is unable to pay his debts, and the member of the forces proves to the satisfaction of the court having jurisdiction in the bankruptcy that his inability to pay his debts is due to circumstances directly or indirectly attributable to his service during the present state of war, the court may, after considering all the circumstances of the case and the position of all the parties, at any time stay the proceedings under the petition for such time and subject to such conditions as the court thinks fit.

Restriction on rights of vendors under hire purchase agreements.

8.—(1.) A vendor shall not, upon default by the hirer (being a member of the forces) in making payment of any sum upon the due date under the provisions of a hire-purchase agreement, take, without leave of the court, any steps for obtaining from the hirer possession of the goods the subject of the agreement.

(2.) On an application by the vendor for leave under this regulation or in any proceeding by the vendor to recover an instalment due under the agreement, the court shall consider any claim of the hirer (being a member of the forces) to relief on the ground that his inability to pay any sum due under the agreement is owing to circumstances directly or indirectly attributable to his service during the present war, and may readjust the amount of the instalments, or may postpone the payment of all or any instalments, in such manner and for such time as the court thinks just in all the circumstances of the case.

(3.) On an application by the hirer (being a member of the forces), the court may exercise the powers conferred by the last preceding sub-regulation.

(4.) If the court orders that payment of any instalment be postponed, the court may direct that interest thereon be paid to the vendor at such rate as it considers reasonable in the circumstances of the case.

(5.) In this regulation—

“hire-purchase agreement” means a hire-purchase agreement entered into before the date upon which these Regulations came into operation and includes a letting of goods with an option to purchase, an agreement for the payment of the

price of goods by instalments, whether such agreement describes such instalments as rent or hire or otherwise, and any other agreement for the purchase of goods, whether or not the property in the goods passes on delivery to the purchaser;

“hirer” means a person who is a purchaser or lessee of goods under a hire-purchase agreement, whether such purchaser or lessee is described as hirer, purchaser, lessee, or otherwise;

“the court” means any court of competent jurisdiction, and an application under this regulation may be made to the court in accordance with the rules or practice of the court;

“vendor” means a person who has disposed of goods under a hire-purchase agreement, whether such person is described in the agreement as vendor, owner, lessor, or otherwise, and includes any person deriving title under or through a vendor to his interest in the goods.

Regulations to apply for six months after termination of war service.

9. During the period of six months immediately succeeding the termination of the period of war service of any person who is or has been a member of the forces these Regulations shall apply in relation to that person and any female dependant of that person in like manner as they apply to members of the forces.

 

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