Roche v Kronheimer - [1921] HCA 25

ROCHE AND OTHERS

KRONHEIMER AND ANOTHER

DEFENDANTS.

ON REFERENCE AND REMOVAL FROM THE SUPREME COURT OF Constitutional Law-Legislative powers of Parliament of Commonwealth-Defence-

External affairs--Treaty of Peace-Regulations to give effect to Treaty-Validity of Act and Regulations--Judicial power-The Constitution (63 &64 Vict. C. 12), secs. 51 (VI.), (XIX.), (XXIX.), T-Treaty of Peace Act 1919 (No. 20 of 1919), sec. MELBOURNE, -Treaty of Peace Regulations (Statutory Rules 1920, No. 25), reg. 20.

The Treaty of Peace Act 1919 is within the legislative power of the Parliament Mar. 14-16, of the Commonwealth; and reg. 20 of the Treaty of Peace Regulations is author- ized by sec. 2 of that Act. both so far as it purports to re-enact the provisions of Part X. of the Treaty of Peace and so far as it purports to provide machinery for enforcing those provisions within the Commonwealth.

Per Higgins J.: The Act can be upheld under the power to make laws as to naval and military defence (sec. 51 (vi.) ); and, semble, also under the power to make laws as to external affairs (sec. 51 (XXIX.)).

Farey v. Burvett, 21 C.L.R., 433, Pankhurst v. Kiernan, 24) C.L.R., 120, Ferrando v. Pearce, 25 C.L.R., 241, and Sickerdick v. Ashton, 25 C.L.R., 506, followed.

QUESTIONS referred and removed to the High Court by and from the Supreme Court of Victoria.

Joseph Kronheimer, who died in Victoria on 16th July 1914, by his will dated 12th December 1913 made bequests and gave interests in the residue of his estate to a number of German nationals, including Max Kronheimer of Hamburg, Germany, who was appointed one

29 CLR 330

OF A. of the executors. Probate of the will was, on 10th October 1914.

granted to the other executors, namely, Joseph Francis Roche, Louis Stanley Benjamin, Jacob Englander and the Equity Trustees Executors and Agency Co. Ltd., leave being reserved to Max Kronheimer to come in and prove.

On 7th October 1920 the Minister for Trade and Customs, pur- porting to act in pursuance of the Treaty of Peace Regulations (Statu- tory Rules 1920, No. 25), made an order vesting in the Public Trustee all the property, rights and interests of Max Kronheimer which he acquired under the will of the testator, and on the same day made similar orders in respect of the other beneficiaries who were German nationals.

An originating summons in the Supreme Court of Victoria was taken out by the executors asking, among other questions, what was the duty of the executors in respect of bequests under the will to persons who were German nationals, and whether such bequests should be paid to the Acting Deputy Comptroller-General or the Public Trustee. The defendants to the summons were Max Kronheimer, who was authorized to defend on behalf of himself and all other beneficiaries who were German nationals, Robert McKeeman Oakley, Acting Deputy Comptroller-General and the Public Trustee under the Trading with the Enemy Act 1914-1916.

At the hearing of the summons Hood J.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Roche v Kronheimer

Details

AGLC: Roche v Kronheimer [1921] HCA 25
Case: [1921] HCA 25
Decision Date: 2 June 1921

CaseChat Overview and Summary

The case of *Roche v Kronheimer* concerned a challenge to the validity of the *Treaty of Peace Act 1919* and regulations made thereunder, specifically regulation 20 of the *Treaty of Peace Regulations*. The dispute arose from orders made by the Minister for Trade and Customs, purporting to vest in the Public Trustee the property of German nationals, including beneficiaries under the will of the late Joseph Kronheimer. The executors of the will sought directions from the Supreme Court of Victoria, which referred and removed certain questions to the High Court of Australia.

The primary legal issue before the High Court was whether the *Treaty of Peace Act 1919* and regulation 20 of the *Treaty of Peace Regulations* were within the legislative powers of the Commonwealth Parliament. Specifically, the court was asked to consider if the Act and regulations were validly enacted under the defence power (section 51(vi)), the external affairs power (section 51(xxix)), or other relevant constitutional provisions, and whether the Act improperly delegated legislative power to the executive.

The High Court, in a joint judgment by Knox C.J., Gavan Duffy, Rich, and Starke JJ., held that the *Treaty of Peace Act 1919* and regulation 20 were valid. The Court reasoned that the defence power extended beyond military operations to include measures necessary for the termination of hostilities and the enforcement of peace terms. Furthermore, the Court affirmed that the Parliament had the power to confer authority on the Governor-General to make regulations for carrying out the treaty, citing previous decisions that upheld similar forms of delegated legislation. The Court also rejected the argument that regulation 20(5) improperly vested judicial power in the Minister, stating that the vesting or divesting of property could be achieved by legislative or executive action under legislative authority, not solely by judicial decree. Higgins J. concurred, finding that the provisions of Part X of the Treaty were within the Commonwealth's powers, particularly the external affairs power, and that the Act and regulations were validly made.

The Court declared that the *Treaty of Peace Act 1919* and the *Treaty of Peace Regulations* made thereunder were valid. Costs were awarded as between solicitor and client for all parties in the High Court, except for the Attorney-General of the Commonwealth, to be costs in the summons.

Orders