A-G (Cth) v Schmidt [No 2] [1962] HCA 55

High Court of Australia Kitto J. A-G (Cth) v Schmidt [No 2] [1962] HCA 55

Cur. adv. vult.

Nov. 9 Kitto J. delivered the following written judgment:—

I have heard argument on a preliminary question as to the construction of s. 13D of the Trading with the Enemy Act 1939-1957 Cth, a section that was inserted in the Act by the Trading with the Enemy Act 1952. Sub-section (1) of that section confers jurisdiction on the High Court to order the payment or transfer to the Controller of Enemy Property of certain moneys, investments, books or accounts. The moneys and investments referred to are all moneys and all investments representing moneys for the time being standing to the credit of the High Court of Australia Suitors' Fund as a result of payments into Court by controllers appointed by the High Court under the Act; and the proceeding before me relates to moneys and investments of that description. By sub-s. (3) of s. 13D an application to the High Court for an order under sub-s. (1) shall be made by the Attorney-General, and the proceeding is an application by that officer. Sub-section (2) contains the provision which I have now to construe. It commences with the words "Notwithstanding anything contained in the last preceding section", i.e. s. 13C, a section which, subject to s. 13D, vests in the Controller of Enemy Property (inter alia) all moneys and investments of the character I have mentioned. With that introduction, sub-s. (2) provides that in proceedings arising under s. 13D the High Court may by order give directions of four kinds, described in four paragraphs. Only pars. (a) and (c) need be considered. Paragraph (a) enables the Court to direct the retention in Court, or the application as directed by the Court, of moneys or investments which, in the opinion of the Court, should be retained or applied for the purposes of meeting "just claims"; and par. (c) enables the Court to direct that the payment of moneys or transfer of investments to the Controller of Enemy Property be subject to such conditions as it thinks fit.