tions-Validity-Purchase of land subject to consent of Treasurer-" Absolute discretion" of Treasurer-Consent subject to condition that purchaser make deposit of Commonwealth bonds-The Constitution (63 &64 Vict. c. 12), 8. 51 (vi.) MELBOURNE, -National Security Act 1939-1943 (No. 15 of 1939-No. 38 of 1943), S. 5 National Security (Economic Organization) Regulations (S.R. 1942 No. 76- 1944 No. 99), Part III.
Part III. of the National Security (Economic Organization) Regulations provides, inter alia, that a person shall not, without the consent in writing of the Treasurer, purchase any land (reg. 6 (1) ) and that, where application is McTiernan and made to the Treasurer for his consent, he may, in his absolute discretion, grant his consent, either unconditionally or subject to such conditions as he thinks fit, or refuse his consent (reg. 9 (2) ).
A person who had agreed to purchase land applied to the Treasurer for his consent to the transaction. The Treasurer was willing to give his consent only upon certain conditions, one of which was that the purchaser should deposit with a bank Commonwealth securities to a value stipulated and should hand to the manager of the bank an "order" which expressed an agreement by the purchaser with the bank that the bonds should remain in the possession of the bank until the purchaser with the consent of the
Held, by Latham C.J., Starke, Dixon and McTiernan JJ, that this condition went beyond the purpose for which the discretion was conferred upon the Treasurer and, accordingly, was not authorized by the Regulations.
Held, by Rich and Williams JJ., that Part III. of the National Security (Economic Organization) Regulations, SO far as it relates to the sale or purchase of land, is not authorized by the Constitution or the National Security Act 1939-1943, and is invalid. Latham C.J. and McTiernan J. were of opinion that the Regulations in question were valid; Starke J. expressed no opinion on this point and Dixon J. was not prepared to say that the control over land dealings established by the Regulations is beyond the defence power.
ACTION referred to Full Court under S. 18 of the Judiciary Act 1903-1940.
In an action in the High Court against the Commonwealth and the Treasurer, the plaintiff, Mary Frances Shrimpton, alleged in her statement of claim that by a contract in writing dated 16th August 1944 she agreed with the owners in fee simple of certain land, upon which a house was erected, to buy the land from them for £575. The contract was expressed to be "subject to consent of the Treasurer
as required by the National Security (Economic Organization)-Regulations." On 7th September she applied to the Treasurer for his consent, and she received a letter in reply, dated 18th September, stating that consent would be given if the whole of the purchase price were paid in cash without borrowing in any form and if she deposited with…
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 Shrimpton v The Commonwealth
Sign in free to access the full text
Details
AGLC
Shrimpton v The Commonwealth [1945] HCA 4
Case
[1945] HCA 4
Decision Date
CaseChat Overview and Summary
The plaintiff, Mary Frances Shrimpton, sought declarations from the High Court of Australia regarding the validity of Part III of the National Security (Economic Organization) Regulations and the conditions imposed by the Treasurer on her proposed purchase of land. The plaintiff had agreed to purchase land for £575, with the contract being subject to the Treasurer's consent as required by the Regulations. The Treasurer indicated consent would be granted if the purchase price was paid in cash without borrowing and if the plaintiff deposited Commonwealth securities valued at £350 with her bank, subject to specific terms regarding the holding of these securities.
The legal issues before the Court were twofold: first, whether Part III of the National Security (Economic Organization) Regulations, as they related to the sale or purchase of land, were authorised by the Constitution or the National Security Act 1939-1943, and thus valid; and second, if the Regulations were valid, whether the Treasurer was empowered to impose the conditions he had stipulated, specifically the deposit of Commonwealth securities, as a prerequisite for granting consent to the land purchase.
A majority of the Court, comprising Latham C.J., Starke, Dixon, and McTiernan JJ., held that the condition requiring the deposit of Commonwealth securities went beyond the purpose for which the discretion was conferred upon the Treasurer and was therefore not authorised by the Regulations. Latham C.J. and McTiernan J. were of the opinion that the Regulations themselves were valid, while Rich and Williams JJ. found Part III of the Regulations, concerning land transactions, to be invalid as it was not authorised by the Constitution or the National Security Act. Dixon J. was not prepared to state that the control over land dealings established by the Regulations was beyond the defence power.
The Court ordered that the plaintiff was entitled to a declaration that the Treasurer was not empowered to require compliance with the condition relating to the deposit of Commonwealth securities.