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[1988] FCA 475
appellant. Application granted in part: Letter of request issued to Supreme Court of Cocos (Keeling) Islands Territory; injunctive relief granted restraining bankrupt from disposing of property pending...
The Federal Court decided it could ask the Supreme Court of the Cocos (Keeling) Islands to help manage the bankruptcy of John Clunies-Ross by transferring his property there to the bankruptcy trustee. Although a UK law (s.122 of the 1914 Bankruptcy Act) that allows British courts to help each other in bankruptcy cases no longer applies to the Federal Court (because Australian law now covers this), it still applies to the Cocos Islands court. Both courts count as 'British courts' under that UK law because of their historical connection to the UK Parliament. The Court issued a formal request (letter of request) to the Cocos Islands court to transfer the property, noting that the legal system in the Cocos Islands is unnecessarily complex due to old colonial laws.
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the application of the section to the Supreme Court of Cocos.
1 cited instrument linked from this judgment.
Accepting, as I do, that the section is capable of application to that court, its power to act on a letter of request from this Court depends upon the characterisation of both as
There is no exhaustive definition of that term in the decided cases. The Supreme Court of Palestine and the District Court of Jerusalem were said to be British Courts albeit Britain's authority over Palestine was exercised under a mandate from the
League of Nations - Re Maundy Gregory (1934) 103 LJ Ch.D.267
(Farwell J.) and by inference from Jerusalem - Jaffa District
Governor v Suleiman Murra (1926) AC 321 where the Privy Council
held that an appeal lay to it from the Supreme Court of Palestine. On the other hand the High Court of Rhodesia, after the Unilateral
Declaration of Independence in 1961 was not a British Court - In
re James (1977) 1 Ch.41. In that case Scarman LJ and Geoffrey Lane J., held over the dissent of Lord Denning MR, that' the Registrar in Bankruptcy of the High Court in England had no jurisdiction to act in aid of the High Court of Rhodesia. In the
"The dictionary meaning... of British is "of or belonging to Great Britain or its inhabitants". In 1604 King James I was proclaimed "King of Great Britain", and that name was by a British statute adopted for the United Kingdom in 1707: see the Act of Union, Article 1. While I can accept that the High Court of Rhodesia is a
"Court" - - for, as Coke (Co. Litt. Vol.1, 58a) remarked "a court is a place where justice is judicially administered" - I am not prepared to interpret a statute
of the British Parliament as including within the category "British" a court which in no way appertains to, or recognises, the authority of the British Sovereign in the territory where it administers justice, and which has been established by a constitution introduced in defiance of the Queen in Parliament. In my judgment the High Court of Rhodesia is not a British Court; section 122 is not available to it; nor has' the English Court jurisdiction to aid it under the section."
The adjective "British" as it appears in various Imperial statutes has typically been given a wide construction in Australia. The Commonwealth of Australia has been held to be a "British possession" for the purposes of the Colonial Courts of Admiralty Act, the Fugitive Offenders Act 1881 and the Extradition Act 1870, the term being defined by reference to "Her Majesty's
Dominions exclusive of the United Kingdom" in the Interpretation
Act 1889 (Imp) - John Sharp & Sons Ltd v The Ship "Katherine
Mackall" (1924) 34 CLR 420; Mcilwraith McEacharn v The' Shell
Company of Australia Limited (1945) 70 CLR 175; McArthur v
Williams (1936) 55 CLR 324; Ex parte Bennett; Re Cunningham (1967)
So too has the State of Queensland for the purposes of
the Merchant Shipping Act 1894 - R v The Commissioner for
Transport Ex parte Cobb & Co. Ltd [1963] Qd.R. 547. And in this
context the ineffectuality of any argument to the contrary based upon the putative severance of imperial ties is well illustrated
by the decision of the High Court in Southern Centre of Theosophy Inc. v The State of South Australia (1979) 145 CLR 246, 256-257.
In relation to s.122 of the Bankruptcy Act 1914 (UK) and its predecessor s.118 of the Act of 1883, the Supreme Courts of the States seem to have had no difficulty regarding themselves as "British Courts"; Re Nall (1899) 20 NSWR 25; Re Fogarty [1904] QWN
67; Re Greenaway [1910] WN (NSW) 112. A broad view of the
provision extending to courts of independent republics is expressed in the 10th edition of Dicey and Morris on The Conflict
"In general 1t may be assumed that so far as English law is concerned, all bankruptcy courts throughout' the Commonwealth are "British Courts", though there may be some exceptions. This is true even though some of the independent countries have assumed republican forms of government; for it is commonly provided that the existing law of the United Kingdom shall continue' to apply in relation to them as if they had not become republics. But it is of course of no avail for the English court to seek the aid of a bankruptcy court in
the Commonwealth overseas if that court does not admit it is British."
The question of characterisation is addressed not to determine whether s.122 applies to this Court but whether the Supreme Court of Cocos is obliged and empowered by the section to respond to this Court's request. The question, as I have already observed, is not to be answered by reference to theories of a constitutional discontinuity at the moment of federation or upon the coming into effect of the Statute of Westminster. Nor can it be answered, as was submitted for the respondent, by reference to the Royal Style and Titles Act 1973 whereby Her Majesty the Queen is authorised to
In my opinion it is sufficient to have regard to the constitutional lineage of both the Supreme Court of Cocos and the Federal Court of Australia from the Parliament of the United Kingdom to be satisfied that in the Supreme Court of Cocos both can be treated as "British Courts" for the purposes of s.122 of the Bankruptcy Act 1914 (UK). And that conclusion is quite consistent with the opinion already expressed that s.29 of the Bankruptcy Act 1966 (Cwth) has worked an implied repeal of s.122 in its application to the Federal Court. For these reasons I am satisfied that the Supreme Court of Cocos has jurisdiction to act in aid of the Federal Court of Australia in the exercise of its
Having established that this Court has power to issue a letter of request to the Supreme Court of Cocos and that that court has power to act in aid, this Court still has a discretion to make the request or not. That discretion will be exercised with regard to considerations of utility and comity. In this case the point of departure in assessing the utility of the orders sought 1s s.58 of the Bankruptcy Act 1966 by which, when a debtor becomes bankrupt, his property vests in his trustee, at least in equity. The term "property" is defined in s.5 of the Act to mean "real or personal property of any description whether situate in Australia or elsewhere, and includes any estate interest or profit, whether present or future, vested or contingent arising out of or incident to any such real or personal property". By
s.17 of the Acts Interpretation Act "Australia" does not include
an external territory. Thus the court which has jurisdiction in bankruptcy "throughout Australia" by force of s.28, does not have
jurisdiction in the Cocos (Keeling) Islands Territory.
Counsel for the respondent conceded that in the ordinary course s.58 will vest in the trustee land and moveables outside the jurisdiction at least in equity. It was put however, that the vesting rests upon the presence of the bankrupt within the jurisdiction and the fact that he is thereby amenable to orders of this Court which might, for example, require him to take the
necessary steps to transfer legal title. But the land the subject
of this application, it was said, is special. It is special because, under the Indenture of 1886, it is the subject of a grant in fee simple subject to conditions including defeasance for alienation without consent of the Crown except in relation to testamentary disposition to a member of the Clunies-Ross family. The Supreme Court, it was said, could not make the vesting order sought without making it subject to a condition that the consent of the Governor-General first be obtained. The requirement for this condition was said to be a relevant factor in the exercise of
this Court's discretion to issue a letter of request.
Accepting that this may be a relevant consideration, I do not regard it as decisive. The requested court, confronted with a request for a vesting order may be constrained by the terms on which the property is held to make its order conditional upon a prior approval by the Governor-General. That constraint does not render the request futile, for the consent may be forthcoming. And if there be an argument that the alienation contemplated by the Indenture does not extend to vesting in bankruptcy, that may be debated before that court in a1zd of a submission that the
In this case I have had some reservations about the procedure which has been adopted, of seeking the issue of a letter of request in this Court, rather than applying directly to the Supreme Court of Cocos for the vesting order. However the
jurisdiction in aid in bankruptcy conferred by s.122 may not be
congruent with the general equitable jurisdiction of the Court. The question of any difference in coverage and associated remedies is a matter which can be debated, if necessary, before that court. In my opinion however, should the parties proceed to an application in the general jurisdiction concurrent with that made pursuant to a letter of request issued by this Court, there is unlikely to be any substantial inconvenience or significant risk
In all the circumstances, I am of the opinion this is a Proper occasion to exercise the discretion of this Court to issue a letter of request in the terms sought by para.(a)(i) of the application. I will hear the parties as to the precise form of the letter and as to whether it ought to include a request in
No case has been made out for the grant of the declaratory relief claimed in the alternative. It would not, in my opinion, assist the Supreme Court of Cocos in its task which will depend upon the law of the Territory and no doubt upon the effect of the defeasance proviso to the Indenture. I am however prepared to grant the injunctive relief sought, at least until the
matter has been determined by the Supreme Court of Cocos.
This case discloses that the affairs of the Cocos (Keeling) Islands Territory are regulated by a system of law which is Byzantine in its complexity. It would be reasonable to expect that persons living in Australia or its territories live under a reasonably intelligible set of laws and legal framework. It is not going too far to say that the ramshackle collection of leftover colonial ordinances and territorial laws by which the Cocos (Keeling) Islands Territory is governed falls well short of
First settlement by Hare Settlement by J. Clunies-Ross
Letters Patent transfer administration Eo Governor of Straits Settlements
Order in Council 20.5 03 Islands become pact of Straits Settlements
Straits Settlement (Repeal) Act 1946 Straits Settlement (Repeal) Order in Council
Singapore Colony Order in Councal Tslands became part of Colony of Singapore together with the Island of Singapore and Christmas Island. Colony of Singapore establishment of Executive Council and Legislative Council
Cocos {heeling) Islands (Request and Consent) Act 1954 (Cwth)
Cocos Islands Order in Councal 1955 Cocos (keeling) Islands Act 1955 (Cwth)y
Cocos (Keeling) Islands became a territory of the Commonwealth of Australia and a Supreme Court 1s established
Acquisition of land from J. Clunies-Ross by Comnonwealth of
Repeal of all Singapore Ordinances continued in force and continuation un force of Ordinances as amended and other Ordinances as at 31.12.57
Singapore Ordinances Application (Amendment) Ordinance L981
Continuation of Merchant Shipping Port Rules and various appointments.
I certify that this and the preceding twenty eight (28) pages are a true copy of the Reasons for Judgment of his Honour
Counsel for the Applicant: Mr P. Johnston with Mr N.P. Gentilli
Solicitors for the Applicant: Messrs. Jackson McDonald
Counsel for the Respondent: Mr D.K. Malcolm QC with Mr J. Ley
Solicitors for the Respondent: Freehill Hollingdale & Page
Re Maundy Gregory (1934) 103 L.J.Ch.D.267 Jetusalem - Jatta District Governor v Suleiman Murra [1926] AC 321
Re Fogarty [1904] QWN 67 Re Greenaway [1910] WN (NSW) 112
(1983) 13 FLR 229
(1936) 55 CLR 324
(1983) 13 FLR 229
(1924) 34 CLR 420
(1945) 70 CLR 175
(1979) 145 CLR 246
Application granted in part: Letter of request issued to Supreme Court of Cocos (Keeling) Islands Territory; injunctive relief granted restraining bankrupt from disposing of property pending determination by that court; declaratory relief refused.