Opinion Number. 1704

Subject

ACQUISITION OF APPLES AND PEARS VALIDITY OF PROPOSED REGULATION REQUIRING HOLDERS OF CROP MORTGAGES OVER APPLES AND PEARS TO LODGE CLAIM FOR COMPENSATION WITHIN ONE MONTH: APPLICATION OF STATUTE OF LIMITATIONS TO COMMONWEALTH

Key Legislation

NATIONAL SECURITY (APPLE AND PEAR ACQUISITION) REGULATIONS regs 17, 23: JUDICIARY ACT 1903 s 64

Date
Client
The Secretary, Department of Commerce

With reference to your memorandum of 28th April, 1942, asking me to draft regulations to amend the National Security (Apple and Pear Acquisition) Regulations, I forward herewith twenty copies (including the Reader’s copy) of draft amending regulations.

I have not included in this draft the amendment to regulation 17 requested by you to provide that firms holding crop mortgages over apples and pears must lodge their claims for compensation within one month of the acquisition or within one month of the claim arising–whichever is the later. As I indicated in my memorandum of 7th May, 1941, crop mortgagees have an interest in the fruit which gives rise to a claim for compensation, not only within the meaning of the Regulations but also within the meaning of the Constitution itself. Whether, as you suggest, it may be constitutional to prescribe some period after which compensation would not be payable is a matter of doubt and would, I think, largely depend upon the circumstances of each case. Whatever the answer to that question may be, however, I am definitely of the opinion that the constitutional right of the mortgagee could not be defeated by a regulation which requires him to exercise that right within such a brief period as one month.

As to the wider question, whether the relevant Statute of Limitations will apply to ordinary claims by the growers themselves, although the question is not free from doubt, there is a reasonable prospect that the Commonwealth could plead the Statute. In England it has been held that the Statute does not bind the Crown, but by reason of certain Australian decisions given on provisions similar to section 64 of the Judiciary Act (which provides that in any suit to which the Commonwealth is a party the rights of parties shall as nearly as possible be the same as in the suit between subject and subject) I take the view that the English decision might not be followed here.

Concerning the amendments to regulation 23 requested by you, I am of the opinion that the powers already included therein are sufficiently wide to confer on the Board power over the two matters suggested by you. I have not, therefore, included these amendments.

[Vol. 34, p. 499]