Marcus Clark & Co Ltd v Commonwealth [1952] HCA 50

High Court of Australia Dixon C.J. McTiernan, Williams, Webb, Fullagar and Kitto JJ. Marcus Clark & Co Ltd v Commonwealth [1952] HCA 50

ORDER Marcus Clark & Co. Ltd. v. The Commonwealth and Others. Demurrer overruled. The plaintiff to pay the costs of the demurrer. R. B. Davies Industries Ltd. v. The Commonwealth and Others. Demurrer overruled. Costs of the demurrer reserved for the judge at the trial of the action or, if the action do not go to trial, then for the order of a judge sitting in the original jursidiction to whom application is made.

Cur adv. vult.

The following written judgments were delivered:—

Sept. 12 Dixon C.J.

Marcus Clark & Co. Ltd. v. The Commonwealth and Others.

The purpose of this suit is to establish that the plaintiff company is free, without the consent of the Treasurer, to borrow a sum of money upon security and also to issue further share capital. An application was made to the Treasurer under the Defence Preparations (Capital Issues) Regulations for his consent to the giving of the security and another application was made for his consent to the issue of further share capital, but both these applications were refused. The plaintiff company however maintains that the Treasurer's refusal of his consent cannot stand in the way of the proposed secured loan or of the proposed issue of share capital because the regulations are invalid or, if this be not so, because there was no lawful ground for the refusal of the Treasurer's consent. The relief which the plaintiff company seeks against the defendants, who are the Commonwealth, the Treasurer and the Attorney-General of the Commonwealth, consists in declarations of right and certain consequential orders. The declarations claimed are that the regulations or the Defence Preparations Act 1951 itself are void and alternatively that the Treasurer's refusals of consent are contrary to the regulations. On that footing, an order is sought that the Treasurer do consider and determine the applications of the plaintiff company according to law and a further order that he do consent to such applications.