National Security (War Damage to Property) Regulations (Amendment) (Cth)

STATUTORY RULES.

1942. No. 494.

 

REGULATIONS UNDER THE NATIONAL SECURITY ACT 1939-1940.*

I, THE DEPUTY OF 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 1939-1940.

Dated this thirteenth day of November, 1942.

WINSTON DUGAN

Deputy of the Governor-General.

By His Excellency’s Command,

J. B. CHIFLEY

for and on behalf of the Minister of State for Defence.

 

Amendments of the National Security (War Damage to Property) Regulations. 

Definitions.

1. Regulation 4 of the National Security (War Damage to Property) Regulations is amended—

(a)by inserting in sub-regulation (1.), after the definition of “approved insurance company” the following definition:—

“‘court of competent jurisdiction’ means a court of the Commonwealth or of a State or of a Territory of the Commonwealth which would have jurisdiction to hear and determine the proceeding instituted if it were an action between subject and subject for the recovery of a debt equal to the amount sought to be recovered;”;

(b) by omitting from the definition of “fixed property” in sub-regulation (1.) the words “so as to form part of that land” and inserting in their stead the words “the property in which would ordinarily pass under a contract for the sale of the land”;

(c) by inserting in the definition of “fixed property” after the words “growing trees”, the words “or vines”;

(d) by inserting in the definition of “plant”, after the words “growing trees”, the words “or vines”;

(e) by inserting at the end of the definition of “private chattels” in sub-regulation (1.) the words “or vines”;

 

* Notified in the Commonwealth Gazette on 13th November, 1942.

  Statutory Rules 1942, No. 79, as amended by Statutory Rules 1942, No. 222.

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(f) by inserting in the definition of “stock”, after the words “growing trees”, the words “or vines”;

(g) by omitting from sub-regulation (1.) the definition of “value of fixed property” and inserting in its stead the following definition:—

“value”, in relation to fixed property, means the added value which the fixed property gave to the land (irrespective of the cost of that fixed property) on 1st January, 1942, or, if the fixed property was not then in existence, the value which it would have given to the land if it had then been in existence;”; and

(h) by inserting after sub-regulation (3.) the following sub-regulation:—

“(3a.) For the purposes of these Regulations, war damage shall be deemed not to have occurred to live-stock unless the live-stock is killed.”.

Exemption from application of regulations.

2. Regulation 5 of the National Security (War Damage to Property) Regulations is amended—

(a) by omitting from sub-paragraph (ii) of paragraph (c) of sub-regulation (1.) the word “or” (last occurring);

(b) by adding at the end of that paragraph the following sub-paragraph:—

“; or (iv) are insured under the National Security (Marine War Risks Insurance) Regulations;”;

(c) by inserting in paragraph (d) of sub-regulation (1.), before the word “any” (first occurring), the word “to”;

(d) by omitting from sub-regulation (2.) the word “it” and inserting in its stead the words “the public authority (other than property and goods which, by the order, are expressly excluded from the operation thereof)”; and

(e) by omitting from sub-regulation (4.) the words “of Parts VI., VII. and VIII.”.

Moneys credited to, and payable out of, fund.

3. Regulation 12 of the National Security (War Damage to Property) Regulations is amended by adding at the end thereof the following sub-regulation:—

“(3.) Payments out of the Fund in accordance with the provisions of the last preceding sub-regulation shall not be made unless approved by the Commission, or, to the extent specified in the authorization, by some person authorized by the Commission to approve any such payments.”.

4. After regulation 19 of the National Security (War Damage to Property) Regulations the following regulation is inserted:—

Ascertaining of values of plant and stock.

“19a. The Commission may, by order, make provision regarding the basis on which values of plant and stock are to be ascertained for the purposes of returns under this Part.”.

Value shown in return to be accepted unless varied.

5. Regulation 20 of the National Security (War Damage to Property) Regulations is amended—

(a)by omitting from the proviso the words “, where the owner of any stock”;

 

(b) by inserting in paragraph (a) of the proviso, before the word “has”, the words “where the owner of any stock”;

(c) by inserting in paragraph (b),before the word “within”, the words “where the owner of any plant or stock”; and

(d)by inserting after the words “be deemed to be the value of that” the words “plant or”.

Contributions to be made.

6. Regulation 26 of the National Security (War Damage to Property) Regulations is amended by inserting in paragraph (a) of sub-regulation (1.), after the word “property” (second occurring), the words “or the land on which it is situated”.

To whom contributions payable.

7. Regulation 31 of the National Security (War Damage to Property) Regulations is amended by adding at the end thereof the following sub-regulations:—

“(2.) Payment of any contributions to a Local Government Authority or approved insurance company, as the case may be, in accordance with the provisions of sub-regulation (1.) of this regulation, shall be deemed to be payment of the contributions to the Commission.

“(3.) Any Local Government Authority or approved insurance company, as the case may be, which receives, or is entitled to receive, any contributions in pursuance of the provisions of sub-regulation (1.) of this regulation, shall receive, or be entitled to receive, the contributions for and on behalf of the Commission, and for that purpose shall be deemed to be the agent of the Commission.”.

Exemption from contribution.

8.—(1.) Regulation 32 of the National Security (War Damage to Property) Regulations is amended—

(a) by omitting the words “or plant” and inserting in their stead the words “plant or stock”;

(b) by inserting in sub-paragraph (v) of paragraph (b),after the word “State” (last occurring), the words “or by any public body or public institution not carried on for the profit of individuals;”; and

(c) by adding at the end thereof the following sub-regulations:—

“(2.) Notwithstanding anything contained in this Part, contributions shall not be payable in respect of any fixed property or plant owned by an organization not carried on for the profit of individuals which is used primarily and principally for providing for the welfare, comfort or recreation of members of the Defence Force.

“(3.) In this regulation, the expression “the Defence Force” includes—

(a) the Naval, Military or Air Forces of the United Kingdom or of any other part of the King’s dominions or of any foreign power allied or associated with His Majesty in the present war;

(b) the Australian Army Nursing Service;

(c) the Royal Australian Air Force Nursing Service;

(d) the Australian Naval Nursing Service;

(e) the Australian Women’s Army Service;

(f) the Women’s Royal Australian Naval Service;

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(g) the Women’s Auxiliary Australian Air Force;

(h)a Voluntary Aid Detachment attached to the Defence Force or to any of the Forces referred to in paragraph (a) of this sub-regulation; and

(i)any other organization, similar to any organization mentioned in paragraphs (b) to (h)of this sub-regulation, which the Commission, by order published in the Gazette, declares to be an organization to which this regulation applies.”.

(2.) The amendment effected by paragraph (a)of sub-regulation (1.) of this regulation shall come into operation on the 1st January, 1943.

(3.) The amendments effected by paragraphs (b) and (c) of sub-regulation (1.) of this regulation shall be deemed to have come into operation on the 23rd February, 1942.

Recovery of contribution by person paying on behalf of another person.

9. Regulation 33 of the National Security (War Damage to Property) Regulations is amended—

(a) by inserting in sub-regulation (2.), after the words “fixed property” (second occurring), the words “or the land on which it is situated”;

(b) by omitting from sub-regulation (3.) the words “three years” and inserting in their stead the words “one year”; and

(c) by inserting after sub-regulation (3.) the following sub-regulation:—

“(3a.) Where a mortgagee liable to make contributions in accordance with the last preceding sub-regulation is a Co-operative Building Society registered as such under the law of any State relating to such Societies, but any other person has a charge over substantially all the assets of the Society, that other person shall be liable to pay to the Society an amount equal to any amount of contributions which the Society has paid in pursuance of the last preceding sub-regulation, and, without prejudice to any other method of recovery, the Society may deduct from any moneys due or becoming due to that other person an amount equal to the amount payable to the Society by that other person under this sub-regulation.”.

Recovery of contributions.

10. Regulation 36 of the National Security (War Damage to Property) Regulations is amended—

(a)by omitting from sub-regulation (1.) the words “may be sued for and recovered” and inserting in their stead the words “the charge may be enforced by the Commission in its own name”; and

(b) by inserting after sub-regulation (1.) the following sub-regulation:—

“(1a.) All contributions due under these Regulations may be sued for and recovered by the Commission suing in its own name in any court of competent jurisdiction as a debt due to the Crown from the person liable under these Regulations to make or pay such contribution.”.

 

11. After regulation 36 of the National Security (War Damage to Property) Regulations the following regulations are inserted:—

Recovery from person in apparent possession or occupation.

“36a.—(1.) Where any fixed property in respect of which a contribution is payable under these Regulations is in the apparent possession or occupation of a person other than the person liable under these Regulations to pay the contribution, the Commission may, notwithstanding that it has not obtained any judgment against the person liable to pay the contribution, make an ex parte application to any court of competent jurisdiction for an order directing the person in apparent possession or occupation of the fixed property to pay to the Commission any rent or other payment for the use or occupation of the fixed property which he is liable to pay to the person liable to pay the contribution.

“(2.) Notwithstanding anything contained in the last preceding sub-regulation, but subject to the proviso to the next succeeding sub-regulation, an application under this regulation shall not be made until after the expiration of two calendar months from the date of the posting, by registered post, of a notice addressed to the person liable to pay the contribution at his last known place of address requiring him to pay the contribution forthwith, and informing him of the Commission’s power to make an application under this regulation if he fails to comply with the requirement.

“(3.) The application shall be in writing accompanied by a certificate signed by some person duly authorized in that behalf by the Commission certifying that there has been compliance with the provisions of sub-regulation (2.) of this regulation, that the contribution is owing and unpaid in respect of the fixed property, and that, to the best of his information and belief, the fixed property is in the apparent possession or occupation of the person to be served with the order made under this regulation:

Provided that where the person signing the certificate certifies therein that, to the best of his knowledge, information and belief, the place of address of the person liable to pay the contribution is unknown, or that such place of address is outside the Commonwealth, it shall not be necessary to certify that there has been compliance with the provisions of sub-regulation (2.) of this regulation, and the judge or magistrate or the master, prothonotary, registrar or other like officer of the court may receive the application and grant leave to proceed thereon notwithstanding that there has not been compliance with those provisions.

“(4.) The certificate shall be prima facie evidence of the facts stated therein, that it has been duly signed and that the person signing is duly authorized in that behalf.

“(5.) A judge or magistrate or the master, prothonotary, registrar or other like officer of the court may, on the filing of the application and certificate, cause to issue an order directed to the person in apparent possession or occupation of the fixed property directing him to pay to the Commission the rent or other payment for the use or occupation of the fixed property which he is liable to pay to the person liable under these Regulations to pay the contribution from time to time as the rent or other payment becomes due and payable.

 

“(6.) The person to whom the order is issued shall, after service on him of a copy thereof, pay to the Commission, or such agent of the Commission as is named in the order, all such rent or other payment for the use and occupation of the property which shall from time to time become due and payable by him to the person liable under these Regulations to pay the contribution until the amount of the contribution together with any costs of the application under this sub-regulation properly incurred has been paid.

“(7.) Payment by any person pursuant to an order under this regulation shall be deemed to be payment of the rent or other payment for the use or occupation of the fixed property to the person liable under these Regulations to pay the contribution and shall pro tanto be a valid discharge to the person so paying under such order of his liability in respect of such rent or other payment for the use and occupation of the property.

“(8.) In all proceedings under this regulation, the procedure of the court to which the application is made shall, subject to this regulation, apply, mutatis mutandis, as if the application were a garnishee proceeding to enforce a judgment obtained in that court.

General provisions relating to recovery.

“36b.—(1.) The several rights of recovery given by the last two preceding regulations shall be supplementary to each other and so long as the contribution remains wholly or in part due and unpaid the Commission shall be at liberty to pursue all or any of those remedies.

“(2.) For the purposes of any legal proceeding instituted under these Regulations—

(a) any due and unpaid contribution or part thereof shall be deemed to be a debt or liquidated demand; and

(b) the cause of action shall be deemed to arise at the place where the contribution is payable under regulation 31 of these Regulations.

“(3.) In any proceedings under these Regulations for the recovery of a contribution it shall not be competent for the court to inquire into the correctness or otherwise of the value assigned to the property or goods in respect of which the contribution is claimed.

“(4.) The jurisdiction of any court otherwise competent shall not be ousted on the ground that the title to land or that any annual rent or other matter in which rights in future may be bound, or that any general right or duty, is in question, but the decision in the proceedings, insofar as it relates to any such question, shall not act as an estoppel in any other court or in any other proceedings in relation to any such matter.

“(5.) For the purposes of any proceedings under these Regulations, any writ, summons, order, direction, notice or document required to be authenticated by the Commission shall be sufficiently authenticated without the seal of the Commission if signed by some person thereunto duly authorized in writing, either generally or in relation to the particular proceeding, by any member of the Commission or proper delegate of the Commission.

 

“(6.) All proper legal costs incurred in recovering any contribution shall be added to and recoverable in like manner as if they were part of the contribution.

“(7.) In any legal proceeding instituted by the Commission for the recovery of a contribution, a certificate in writing signed by a person thereunto authorized in writing, either generally or in relation to the particular proceeding, by any member of the Commission or proper delegate of the Commission certifying that—

(a)the person signing the certificate is duly authorized in that behalf;

(b) the person named in the certificate is the person liable to pay the contribution sought to be recovered;

(c) an assessment has been duly made against him;

(d) the particulars of the assessment are as stated in the certificate;

(e) the notice of assessment was duly served upon him; and

(f) the sum named in the certificate was at the date of the certificate due and unpaid by the person named in the certificate,

shall be prima facie evidence of the facts stated in the certificate, and, in the absence of evidence to the contrary, the court shall presume that there has been no alteration in any of the facts since the date of the signing of the certificate.

Assessment and recording of war damage.

12. Regulation 38 of the National Security (War Damage to Property) Regulations is amended by omitting sub-regulations (1.) and (2.) and inserting in their stead the following sub-regulations:—

“(1.) The Commission shall, upon receipt of a claim for compensation in accordance with the last preceding regulation, or, in such cases as the Commission in its discretion thinks fit, without the lodging of a claim in accordance with that regulation, inquire into the circumstances of the occurrence of the war damage and the extent thereof, and assess the amount which, in its opinion—

(a) in the case of fixed property or plant—would be the reasonable and proper cost as at the date of the occurrence of the war damage of restoring that fixed property or plant to substantially the form and condition in which it existed immediately prior to the occurrence of the war damage;

(b) in the case of stock—is the amount of damage occasioned to the stock ascertained by reference to—

(i) to the extent to which the stock consists of goods which are the subject of a hire purchase agreement and which are in the possession of the hirer—the selling price of those goods less any hiring charges, insurance and depreciation;

(ii) to the extent to which the stock consists of any particular stock or class of stock concerning which the Commission, by reason of the existence of special circumstances, has, for the purpose of calculating the contributions payable under these

 

Regulations, determined a value other than the cost price less depreciation—the value as so determined; and

(iii) to the extent to which the stock consists of stock to which sub-paragraph (i) or (ii) of this paragraph does not apply—the cost price of the stock less an amount equal to the amount, if any, of the depreciation of the stock as at the time immediately prior to the occurrence of the war damage,

and shall record the amount so assessed.

“(2.) Notwithstanding the value which may have otherwise been adopted for the purposes of these Regulations, the amount so assessed and recorded shall not exceed—

(a) the amount remaining after deducting from the value of the fixed property, plant or stock on which contributions were payable immediately prior to the occurrence of the war damage, the value of the fixed property, plant or stock immediately after that occurrence:

Provided that, where, owing to any contravention of or failure to comply with the provisions of these Regulations, the full amount of contributions required to be paid under these Regulations in respect of the contribution period during which the war damage occurs, has not been paid prior to the occurrence of that damage, the value on which the contributions were payable shall, for the purposes of the preceding provisions of this paragraph, be deemed to be—

(i) where no contributions were paid—twenty per centum (or such greater percentage as the Commission, in special cases, determines) of the value on which contributions were payable in respect of the fixed property, plant or stock immediately prior to the occurrence of the war damage; or

(ii) where the contributions paid were less than the contributions required by these Regulations to be paid—an amount ascertained by deducting from the value on which contributions were payable in respect of the fixed property, plant or stock immediately prior to the occurrence of the war damage eighty per centum (or such lesser percentage as the Commission, in special cases, determines) of the amount by which that value is greater than the amount which would be the value of the fixed property, plant or stock appropriate to the contributions paid; or

(b) in the case of plant in respect of which no contributions are made, by reason of regulation 32 of these Regulations—

(i) in the case of an organ (including pipes and all other parts and fittings therefor) or an altar used in any place of worship—Three thousand pounds;

 

(ii) in the case of any scientific or medical instrument or equipment or of any vehicle used for transport—such amount as the Commission, in its discretion, determines; or

(iii) in the case of any other article—One hundred pounds.

“(2a.) For the purposes of paragraph (a) of the last preceding sub-regulation, the value of fixed property immediately after the occurrence of the war damage shall be ascertained by determining what the value of the fixed property would have been had it existed on the 1st January, 1942, in the condition in which it is immediately after such occurrence.”.

Restoration of property, &c., affected by war damage.

13. Regulation 39 of the National Security (War Damage to Property) Regulations is amended by omitting from paragraph (a) of sub-regulation (1.) the word “Fifty” and inserting in its stead the words “One hundred”.

14. After regulation 44 of the National Security (War Damage to Property) Regulations the following regulation is inserted:—

Reference to owner, &c.

“44a. Any reference in this Part to the owner of any fixed property, plant or stock, or to any person having any right, title or interest therein, shall, insofar as the provisions of this Part relate to the making of a claim for compensation, or to the assessing, recording or payment of compensation, be read as a reference to the person who is the owner, or who has that right, title or interest, as the case may be, at the time of the occurrence of the war damage.”.

Application for voluntary participation.

15. Regulation 45 of the National Security (War Damage to Property) Regulations is amended by inserting, in sub-regulation (3.), after the words “growing trees” (wherever occurring), the words “or vines”.

Application of regulations to private chattels, &c.

16. Regulation 47 of the National Security (War Damage to Property) Regulations is amended by inserting after the words “growing trees” (wherever occurring) the words “or vines”.

17. After regulation 49 of the National Security (War Damage to Property) Regulations the following regulation is inserted:—

Limit of war damage assessed and recorded.

“49a. The amount of war damage assessed and recorded in pursuance of sub-regulation (1.) of regulation 38 of these Regulations in respect of any property or goods brought within the provisions of these Regulations in pursuance of this Part shall not exceed the value in respect of which contributions were paid prior to the occurrence of the war damage.”.

Inspection of premises, goods, books, &c.

18. Regulation 59 of the National Security (War Damage to Property) Regulations is amended by adding at the end thereof the following sub-regulation:—

“(2.) A person shall not obstruct any authorized person in the execution of his powers under the last preceding sub-regulation.”.

Commission may determine category to which property or goods belong.

19. Regulation 61 of the National Security (War Damage to Property) Regulations is amended by inserting, after the word “trees”, the words “or vines”.

 

No transfer of benefits or liabilities.

20. Regulation 64 of the National Security (War Damage to Property) Regulations is amended by inserting after the word “company” the words “, and subject to regulation 64a of these Regulations”.

21. After regulation 64 of the National Security (War Damage to Property) Regulations the following regulations are inserted:—

Rights to compensation to be inalienable.

“64a.—(1.) Subject to this regulation, any right, title or interest in any compensation payable under these Regulations shall be absolutely inalienable and any contract, insofar as it purports to assign any such compensation, or any interest therein, shall—

(a) if the contract was entered into prior to the commencement of this regulation—cease to have any effect as from the commencement of this regulation; or

(b)if the contract is entered into after the commencement of this regulation—be void ab initio.

“(2.) Nothing in the last preceding sub-regulation shall prevent any assignment, with the approval of the Commission, of the whole or any part of any compensation where the contract of assignment is made—

(a)after the compensation has been assessed and recorded in accordance with the provisions of Part VII. of these Regulations; or

(b) after the Commission is satisfied that war damage to the property or goods has occurred, or may reasonably be presumed to have occurred, but that insufficient information is available to enable the compensation to be assessed and recorded.

“(3.) Where, after war damage has occurred to any property or goods, any person having any right, title or interest in that property or those goods transfers that right, title or interest to any other person, the Commission may permit that first-mentioned person to assign to that other person any compensation to which he is, or may become, entitled in respect of the occurrence of that war damage, in which case nothing in sub-regulation (1.) of this regulation shall operate to prevent the assignment of that compensation to that other person.

No contracting out of obligation to pay contributions.

“64b. Any contract, insofar as it purports—

(a) to make liable to the payment of contributions under these Regulations any person other than the person who is liable under these Regulations to make that payment; or

(b) to require any person to make any payment to the person liable under these Regulations to make payment of contributions in respect of payments of contributions made or to be made by that second mentioned person,

shall—

(i) if the contract was entered into prior to the commencement of this regulation—cease to have any effect as from the commencement of this regulation; or

(ii) if the contract is entered into after the commencement of this regulation—be void ab initio.”.

 

Prohibition of war damage insurance.

22. Regulation 65 of the National Security (War Damage to Property) Regulations is amended by adding at the end thereof the following sub-regulation:—

“(3.) Nothing in the preceding provisions of this regulation shall apply to any insurance effected in pursuance of the provisions of the National Security (Marine War Risks Insurance) Regulations.”.

 

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