MorcGan v Wuire.

MorcGan v Wuire. - [1912] HCA 50 - HCA 1912 case summary — Zoe

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country? Certainly not. The governing principle is that all legislation is primd facie territorial, that is to say, that the legis- lation of any country binds its own subjects and the subjects of other countries who for the time being bring themselves within the allegiance of the legislating power." In the same case Cotton L.J. said (1) : - * All we have to do is to interpret an Act of Parlia- ment which uses a general word, and we have to say how that word is to be limited, when of nece: ssity there must be some limitation. I take it the limitation is this, that all laws of the English Parliament must be territorial - territorial in this sense, that they apply to and bind all subjects of the Crown who come within the fair interpretation of them, and also all aliens who come to this country, and who, during the time they are here, do any act which, on a fair interpretation of the Statute as regards them, come within its provisions." This rule rests on the pre- sumption that the legislature did not intend to give its enactment an effect which would be inconsistent with international law or with the comity of nations. It is "the broad, general, universal principle that English legislation, unless the contrary is expressly enacted or so plainly implied as to make it the duty of an English Court to give effect to an English Statute, is applicable only to English subjects or to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction. . . . It is not consistent with ordinary principles of justice or the comity of nations that the legislature of one country should call on the subject of another country to appear before its tribunals when he has never been within their jurisdiction": James LJ. in Hx parte Blain: In re Sawers (2). In the case of the Statute of a self- governing part of the Empire, the construction which limits general words to a territorial application vests on the further ground that the result of the wider construction would be that the Statute exceeded the powers of the legislature which had passed it. This appears from the judgment of the Judicial Com- mittee in Macleod's Case (3).

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alone are, if general, to be read in a sense limited to New South Wales, and that the Act affords a context which itself tends to limit them to that sense, I am of opinion that the words are on the face of the provision not necessarily to be read as general at all. Taking first the words "bankrupt or insolvent," although there are States in the Empire where the condition consequent on an adjudication is termed by law an insolvency and not a bankruptey, still that was the term used in this State until the passage of the Act of 1887. At that time it is evident that there were still estates of insolvents not finally dealt with; see secs. 106 (1) and 133 (1); and their existence was ample reason why the words "or insolvent" should have been employed in both sub-sections of sec. 40, to specify local adjudications. The words "statutory composition or arrangement" deseribe the process provided for in Part I., Division 4, of this very Act. " Assign- ment for the benefit of creditors at common law" is equally applicable to sych an assignment here or elsewhere within the self-governing dominions, but it is no more. Finally, the words "unless . . . a majority in number and value of the credi- tors in that estate" (ic, the estate previously bankrupt or insolvent) "certify that in their opinion the bankruptcy or insolvency was the result of misfortune only," cover the cases of composition or arrangement. A certificate as to misfortune is applicable to them, but is to relate to them as "bankruptey or insolvency," showing that the sub-section includes compositions, &c., in that category. That is a correct description as to the New South Waies law, for here the proposal for a composition or arrangement cannot be made till after the sequestration order, which is the adjudication of bankruptey ; while in England and wherever else the English Act of 1883 has been adopted, it must precede the adjudication, and if adopted is not a proceeding in the bankruptcy. In point of fact it obviates a bankruptey.

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bh the Court which of the possible alternative orders is the ual one Moncaw in the circumstances? In the case of Western Australia it 4 Winre, Would be easier than if it were New Zealand, and still easier than if it were Canada, and the United States, but the difference Tes) between trouble, uncertainty and cost in that case, and the facility, comparative certainty, and inexpensiveness with which - . the Court could inspect its own records and deal with a matter where insolvency is the subject matter of inquiry, or make inquiries as to local compositions and assignments, constitutes a strong reason for adhering to the local limitation. How is the - Court to enter upon an examination of the circumstances of an English, Irish, Scotch or foreign bankruptey, or a New Zealand composition, or a Jamaican assignment, so as to do justice to all concerned? So far, then, as a practical exaimination of the words of the section can elucidate the matter, they do not by any means support the construction given to them by the respondent. 4 Now there are other considerations which may legitimately be - called in aid either to strengthen or to weaken that primary con- _ struction. One is the way in which the legislature refers to some proceedings and matters outside New South Wales. Sec. 3 defines " property" as including all property " whether situate in New South Wales or elsewhere." : See. 4 in sub-secs. (), (b), and (¢) contains the words "in New - South Wales or elsewhere" with reference to conveyances or assignments. Sub-sec. (i) makes it an act of bankruptey if the debtor has been adjudged bankrupt or insolvent by a British Court of competent jurisdiction "in or out of New South Wales." - From these it appears that Parliament when it intended to include _ matters outside New South Wales took pains to say so. Another - is the purview of the other sub-sections in sec. 40. Certainly in - most of them their operation is confined to this State, and in all - of them - leaving aside for the moment the present case - it is so 4 substantially. For, though incidentally transactions and events _ occurring beyond New South Wales may require consideration as relevant circumstances, such as the sale of goods elsewhere by the commercial travellers of a Sydney firm, or the disposal in another State of goods forwarded from this State - yet the clear contem- a

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Another relevant consideration, having an important bearing on the situation is the well-known doctrine that legislation is primarily territorial as Lord Halsbury L.C., said in Cooke v. Charles A. Vogelev Co. (1). The meaning of the doctrine is that unless the language of a Statute by express words or necessary implication indicates the contrary, the persons, property, and events in respect of which Parliament has legislated are presumed to be limited to those in the territory over which it has jurisdic- tion and for the welfare of which it exercises that jurisdiction. Now, the jurisdiction of the Imperial Parliament in the eye of a British Court extends to all persons on British territory whether foreigners or not, and to all British subjects whoever they may be; and im a British Court the meaning of an Imperial Act will be understood accordingly: R. vy. Earl Russell (2). But the jurisdiction of the State Parliament does not extend to any person whatever his nationality outside the State territory - though of course it may affect any property within it wherever the owner may be. And the meaning of a State Statute must be understood accordingly: Macleod v. Attorney-General for New South Wales (3). The Parliament of New South Wales has very clearly recognized the force of the presumption and provided for it, by expressly extending, in the instances I have mentioned, the area applicable to the locality of property, conveyances and assignments, and judicial proceedings. A distinction which bears strongly on the interpretation is drawn by the learned primary Judge and this requires careful examination. He says that the refusal of a certificate of discharge is not a punishment. Now, where an Act of Parliament says that a man shall be deprived of his normal status as an ordinary citizen, and shall not only be deprived of his property, but placed under personal control, the further provisions which forbid his release from that artificial condition of subjection are of the same nature as those under

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had to judge whether or not the bankrupt is a man fit to b trusted again with the carrying on of trade." It is obvious ai adverse judgment on that point is a severe punishment. The is no practical difference between putting a man into a cage, and preventing him from getting out. In Jn re Jenkins (2) vash and hazardous speculation was spoken of by Cave J. as "an offence of | which this man has been guilty." And at p. 43 he said it would be "sufficiently punished by the suspension of the discharge for three years." Vaughun- Williams J. agreed. In In re Tobias & Co.; Ex purte H. A. Tobias (3) the same two Judges sat - and again the refusal of the discharge is spoken of as (4) "a punish-_ ment on the bankrupt " - on that ground it was held that a new - application might be made because " there can be no reason why the punishment should not be remitted at any distance of time, if it can be shown that the object of the punishment has been effected." J If, then, the legislature, carefully observing the necessity of | indicating clearly when they intend to affect the status originally of any person in respect of events occurring outside the territory, | wished to continue to affect that status by independent foreign - events, although the first had been exhausted, it is highly improb- s able that another course - an indirect and unexpected course - would have been adopted. I think it altogether inherently unlikely that the Parliament of New South Wales intended, without distinctly saying so, to create a possible bar in perpetuum against resumption of citizenship and freedom from personal con- trol by reason of some act done outside the jurisdiction, at any - prior distance of time, and when the debtor owed no allegiance to this State, and was then under no obligation to conform to its special standards of right and wrong. And this inherent improb- ability is borne out by the fact that, notwithstanding all other conditions for instituting bankruptey proceedings are fulfilled, no creditor is entitled to present a petition unless (see sec. 6 (d)) the debtor is domiciled in New South Wales, or, within a year before, has ordinarily resided, or had a dwelling house or place of busi- ; ness, in New South Wales.

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