A minute by the Assistant Law Officer of New South Wales raising the question whether subjects of the German Empire, now at war with Great Britain, residing in Australia are entitled without licence from the King to enter into contracts in Australia, and whether such subjects may sue on such contracts in the Australian courts has been placed before me for my opinion.

It is not necessary, in this connection, to enter into the numerous questions which arise as to the conditions under which intercourse with an enemy country may be maintained under licence from the King. I take the question to be limited to the carrying on of business by German subjects in Australia. With respect to such business and the contracts involved in it, it seems to be clear that such subjects who are permitted to continue to reside here are under the King's protection and may contract, and sue and be sued in the Australian courts as if they were the King's subjects. No express licence for such trading is necessary: the licence to trade is implied in the permission to remain here: see Sparenburgh v. Bannatyne 1 B. & P. 163, p. 171, per Heath J., and at p. 172 per Rooke J. See also Pitt Cobbett, Cases and Opinions on International Law, at p. 90. See also Clarke v. Morey 10 Johns. 69, per Kent C.J., who states that:

Aliens, resident in the United States at the time of war breaking out between their own country and the United States, or who come to reside in the United States after the breaking out of such war, under an express or implied permission, may sue and be sued, as in time of peace; and it is not necessary, for that purpose, that such aliens should have letters of safe conduct, or actual license to remain in the U.S., but a license and protection will be implied, from their being suffered to remain, without being ordered out of the U.S. by the Executive.⁽¹⁾

The only reported case which appears to be inconsistent with this view is that of Alcinous v. Nigreu 4 El. & Bl. 217, decided by the King's Bench in 1854; but in a recent case before the House of Lords in 1902 (Janson v. Driefontein Mines [1902] A.C. 484) this case appears to have been disregarded, and the case of Wells v. Williams 1 Ld. Raym. 282, which supports the view I have stated, to have been adopted. Lord Lindley in the House of Lords case, at pp.505-6 says:

But when considering questions arising with an alien enemy, it is not the nationality of a person, but his place of business during war that is important. An Englishman carrying on business in an enemy's country is treated as an alien enemy in considering the validity or invalidity of his commercial contracts: McConnell v. Hector 6 R.R. 724. Again, the subject of a State at war with this country, but who is carrying on business here or in a foreign neutral country, is not treated as an alien enemy; the validity of his contracts does not depend on his nationality, nor even on what is his real domicil, but on the place or places in which he carries on his business or businesses.

[Vol. 13,p.11]

(1)This passage does not apper in the judgment of Kent C.J., but constitutes the opening paragraph of the headnote to the case.