Trading with the Enemy (Vesting on Application of Property) Rules (Cth)

STATUTORY RULES.

1918. No. 51.

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IN THE HIGH COURT OF AUSTRALIA.

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As of Tuesday, the 4th day of December, a. d. 1917.

It is ordered as follows:—

Interpretation.

1. In these Rules—

The expression “the Act” means the Trading with the Enemy Act 1914-1916.

The expression “Public Trustee” means the Public Trustee appointed by the Governor-General under the Act; “enemy” has a meaning corresponding to that given to “enemy subject” in the Act.

The expression “property” means any real or personal property including any rights, whether legal or equitable, in or arising out of property real or personal.

References to sections and sub-sections are references to sections and sub-sections of the Act.

Applications under section 9c.

2.—(1) Applications under section 9c shall be by way of originating summons, and such applications and any subsequent applications shall in general and except so far as hereby otherwise provided be made and dealt with mutatis mutandis in accordance with the practice of the Court with regard to similar matters under the Rules of the Court and otherwise.

(2) In all cases where the originating summons is not taken out by the Public Trustee, he shall be named as a respondent thereto, and it shall be served on him unless the Court or a Justice shall in any case or class of cases otherwise order.

(3) In general and except so far as the Court or a Justice otherwise orders the enemy to whom any property may be alleged to belong shall be named as a respondent to any originating summons under section 9c, and any person or corporation holding or managing any property alleged to belong to the enemy may also be named as a respondent to the originating summons.

(4) Originating summonses under section 9c shall be intituled in the matter of the Act and in the matter of the enemy or alleged enemy in question, and may be in the form or to the effect set out in the Schedule hereto.

C.17024.—Price 3d.

(5) Any powers of selling, managing, or otherwise dealing with property which may be given to the Public Trustee, by any order made under section 9c may from time to time be revoked, suspended, varied, increased, added to, or otherwise dealt with, as the Court or a Justice shall from time to time think fit on application made either under liberty reserved by the original order or otherwise.

Evidence.

3. On an application under section 9c the applicant must file an affidavit or affidavits showing—

(a) that the person or corporation, whose property is proposed to be dealt with, is an enemy;

(b) the nature and extent of the property in which such person or corporation is alleged to be interested;

(c) any special ground on which it is expedient that the property should be vested in the Public Trustee; and

(d) in cases where the applicant is not the Public Trustee or a Minister of State, the facts showing that the applicant is a creditor of the enemy or otherwise entitled to apply under section 9c.

Subsequent applications.

4 —(1) Any subsequent application with regard to any property comprised in an originating summons under section 9c or vested in the Public Trustee may be made by ordinary summons, entitled in the same matters as the originating summons.

(2) In cases where any party has already appeared by a solicitor any such ordinary summons may be served on that solicitor or in case of a change of solicitors on the solicitor last appearing for that party although no general appearance in the matter has been entered.

(3) Every subsequent application not made by the Public Trustee shall be served on him unless the Court or a Justice shall in any case or class of cases otherwise order.

Applications under section 9d (2).

5.—(1) Applications under section 9d (2) for payment out of property vested in the Public Trustee of any debt or debts shall be made and dealt with as follows:—

(2) The application shall be deemed a subsequent application for the purpose of the last preceding rule.

(3) The Court or Justice may on the hearing of the application direct all such accounts and inquiries as may be necessary or proper for the purpose of ascertaining the total debts and claims having priority to or ranking with the debt or debts proposed to he paid in whole or part, and (if thought fit) the property available for the payment of such debts and claims, and may for that purpose direct the Public Trustee or any party to issue such advertisements and require such proof by statutory declaration or otherwise as may be expedient. And the Public Trustee may, if he think fit, carry out the duties imposed on him by the proviso to section 9d (2) under the direction of the Court or a Justice.

(4) In directing any payment or payments under section 9d (2) the Court or Justice shall act in accordance with the ordinary rules and practice of the High Court in the administration of estates, but so nevertheless that the Court or Justice shall not be bound to inquire into

or take into account or to cause the Public Trustee to inquire into or take into account debts and claims against the enemy to any greater extent than provided for by the proviso to that section.

Presence of parties.

6—(1) Any application under the Act, whether original subsequent or other, may be proceeded with heard and dealt with by the Court or Justice, if thought fit, in the absence of an enemy or any other party who shall be or appear to be abroad or whose whereabouts may not be known or whose presence may otherwise be difficult to secure, or without service of any summons or notice of summons on any such party or any intimation to such party other than such, if any, as the Court or Justice shall think fit. And this sub-rule shall be in addition to and by way of extension and enlargement of the ordinary powers and parities of the Court as to the proceedings ex parte and as to substituted service.

Hearing is private.

7. The Court or Justice may at any stage of the proceedings on any application under section 9c or section 9d order that the case shall thenceforward be heard in private.

Variation of order.

8. Any order made under these Rules may, if subsequent circumstances render it just so to do, be suspended discharged or otherwise varied or altered by the Court or a Justice.

Fees.

9. The fees payable under these Rules shall be the same as those which would be payable in respect of similar proceedings under the ordinary practice of the Court. Provided that the Court or a Justice may remit or excuse either in whole or in part any so paid or payable.

General practice to be followed. Costs.

10. The proceedings on any application under the Act shall so far as not otherwise provided for by these Rules be conducted in accordance with the ordinary practice dealing with similar matters. And the costs of all, and incidental to all, such proceedings shall be in the discretion of the Court or Justice.

Short title of rules.

11. These Rules may be cited as the “Trading with the Enemy (Vesting on Application of Property) Rules,” and shall come into operation forthwith.

 

SCHEDULE

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In the High Court of Australia,

Registry,

In the matter of the Trading with the Enemy Act 1914-1916.

In the matter of A.B. an Enemy within the Act.

Let A.B. of    a person alleged to be an enemy within the above Act and the Public Trustee, under the above Act attend at the chambers of Mr. Justice  at the time specified in the margin hereof (or on the day of  19  at  o’clock in the noon) on the hearing of an application of C.D. of who claims to be a creditor of the said A.B. (or to be entitled to recover damages against the said A.B. orto be interested in the property hereinafter referred to belonging to or held or managed for or on behalf of the said A.B.) that the undermentioned real or personal properly [or rights in or arising out of real or personal property] may vest in the said Public Trustee and that there may be conferred on him such powers of selling managing or otherwise dealing with the property as may seem proper.

The following constitutes the real or personal property or rights to which this summoned refers, namely, (here give short description).

Note.—It will not be necessary for you to enter an appearance in the Registry, but if you do not attend either in person or by your solicitor at the time and place above-mentioned (or named in that indorsement hereon), such order will be made and proceedings taken as the Justice may think just or expedient.

S. W. GRIFFITH, C.J.

EDMUND BARTON, J.

ISAAC A. ISAACS, J.

CHAS. POWERS, J.

G. E. RICH, J.

J. W. O’HALLORAN,

Principal Registrar.

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