Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission [1977] HCA 55

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission [1977] HCA 55

ORDER Demurrers allowed with costs. Plaintiff given liberty to amend generally its statement of claim if so advised.

Cur. adv. vult.

The following written judgments were delivered:

1977, Nov. 2 Barwick C.J.

The plaintiff at relevant times was the holder of almost 2,000,000 fully paid 25 cent shares in the capital of the second defendant. The plaintiff challenges the propriety of the allotment to the first defendant of 30,764,142 ordinary shares of 25 cents each paid to 10 cents in the capital of the second defendant. The first defendant ("the Commission") is set up and incorporated by s. 8 of the Atomic Energy Act 1953-1973 Cth ("the Act"). Section 8 (2) of the Act provides:

The Commission shall be a body corporate with perpetual succession and a common seal, and shall be capable of acquiring, holding and disposing of real and personal property and of suing and being sued in its corporate name. Division 2 of Pt II prescribes the functions and powers of the Commission. The relevant provision of this division is s. 17 which provides in sub-s. (1) (a): to undertake, or arrange for or encourage other authorities or persons to undertake, exploration for, and mining and treatment of uranium and minerals found in association with uranium; and in sub-s. (4): The functions of the Commission specified in sub-section (1) of this section shall be performed only—

(a) for the purpose of ensuring the provision of—

(i) uranium or atomic energy for the defence of the Commonwealth;

(ii) uranium to be supplied by or on behalf of the Commonwealth to the Government of another country or to an authority acting on behalf of the Government or Governments of another country or countries; or