_- oo JUDGMENT No. 421.27. 8.80.0 BANKRUPTCY - property outside Australia - located in external territory — subject of Crown Grant under Indenture ~- defeasible on alienation - power of Federal Court to issue letter of request for vesting order - power of Supreme Court of Territory to act in aid - application of s.122 Bankruptcy Act 1914 (UK) to Federal Court ~ implied repeal by s.29 Bankruptcy Act 1966 - jurisdiction of territory court to act in aia - constitutional history of territory - whether territory court derives jurisdiction in aid from Bankruptcy Ordinance 1888 (Singapore) - from Supreme Court Ordinance 1355 application of s.122 of Bankruptcy Act 1914 [(UK) to territory court — whether territory court and Federal Court are "British courts" for that purpose - meaning of "British courts" discretion to issue letter of request - considerations of utility and comity - possibility of vesting order conditional on approval of Governor-General under Indenture - quaere whether invocation of general civil jurisdiction preferable ~ no significant inconvenience or additional cost -— possible non-congruence between general jurisdiction and jurisdiction in aid in bankruptcy. COURTS - Federal Court of Australia - power to issue letter of request ~— whether "British court" for purposes of s.122 Bankruptc Act 1914 (UK) - implied repeal of 5.122 by Bankruptc Amendment Act 1980 ~ Supreme Court of Cocos (Keeling) Islands Territory - sources of jurisdiction - constitutional history - jurisdiction in bankruptcy — jurisdiction in aid -— whether "British court". Bankruptcy Act 1966 (Cwth) ss. 5, 29, 58 Bankruptcy Amendment Act 1980 Straits Settlements Act 1866 Straits Settlements (Repeal) Act 1846 Straits Settlement (Repeal) Order in Council, 1946 Singapore Colony Order in Council 1946 Statute of Westminster, 1931 Cocos (Keeling) Islands (Request and Consent) Act 1954 Cocos islands Act 1955 (UK) Cocos Islands Order in Council 1955 Cocos (Keeling) islands Act 1955 (cwth) ss. 6, 7, 8, 9, 12 Supreme Court Ordinance 1955 ss.4, 9, 14(1) Singapore Ordinances Application Ordinance 1979 s.5 Singapore Ordinances Application (Amendment) Ordinance 1981 Bankruptey Ordinance 1888 (Singapore) ss.90, 92, 102 Bankruptcy Act 1883 (UK) s.118 Bankruptcy Act 1914 (UK) s.122 Insolvency Act 1967 (NZ) s.135 Australian Capital Territory Supreme Court Act 1933 Bankruptcy Act 1898 (NSW) Colonial Courts of Admiralty Act (UK) Fugitive Offenders Act 18 (UR) Extradition Act 1870 (UK) Merchant shippi Act 1894 (UK) in Royal Style and Titles Act 1973 Acts Interpretation Act (Cwth) s.17 2. Roberts-Wray - Commonwealth and Colonial Law (1966) pp.133-134, 882-883 Kelly - Constitutional Confusion in the Cocos Islands (1983) 13 FLR 229 Tahmindjis — Australia, The Cocos Islands and Self Determination (1986) Qld. tInstitute of Technology Law Journal I77 Nygh - Conflict of Laws in Australia - 4th edition p.478 Dicey and Morris — The Conflict of Laws 10th edition p.705 Re Maundy Gregory (1934) 103 L.J.Ch.D.267 Jetusalem—Jatta District Governor v Suleiman Murra [1926] AC 321 In re James (1977) 1 Ch.41i John Sharp & Sons Ltd v The Ship "Katherine Mackall" (1924) 34 CLR McIlwraith McEBacharn v The Shell Company of Australia Limited 9 70 CLR 17 McArthur v Williams (1936) 55 CLR 324 Ex parte Bennett; Re Cunningham (1967) 86 WN (NSW) 323 Rv The Commissioner for Transport Ex parte Cobb & Co. Ltd [1963] Qd.R.547 Southern Centre of Theosophy Inc. v The State of South Australia (1979) I45 CLR 246 Re_ Nall (1899) 20 NSWR 25 Re Fogarty [1904] QWN 67 Re Greenaway [1910] WN (NSW) 112 RE: JOHN CECIL CLUNIES-ROSS EX PARTE: GEOFFREY FRANK TOTTERDELL, the Trustee of the property of John Cecil Clunies-Ross, a bankrupt. JOHN CECIL CLUNIES-ROSS No. 263 of 1986 FRENCH J. PERTH 23 AUGUST 1988 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA No. 263 of 1986 RE: JOHN CECIL CLUNIES~ROSS A Bankrupt Ex Parte: GEOFFREY FRANK TOTTERDELL, the Trustee of the property of John Cecil Clunies-Ross, a bankrupt. Applicant and JOHN CECIL CLUNIES-ROSS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 26 AUGUST 1988 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. A letter of request do issue requesting the Supreme Court of the Cocos (Keeling) Islands Territory to act in aid of and be auxiliary to this Honourable Court in the following manner: By vesting in Geoffrey Frank Totterdell, the person appointed under the Bankruptcy Act 1966 as_ the Trustee in Bankruptcy of the estate of John Cecil Clunies-Ross, the property real and personal of the 2. said John Cecil Clunies-Ross in the Cocos (Keeling Islands) Territory and the possession and control thereof, with liberty to sell and lease the same and receive the proceeds of such sale or leasing with authority to take such steps and do such acts and things as may be necessary for those purposes. The letter of request be in the form annexed hereto. The respondent be and is hereby restrained until the determination by the Supreme Court of the Cocos (Keeling) Islands Territory of the matters raised in the letter of request from, by himself, his servants or agents taking any steps to dispose of any interests he may have in real or personal property in the Cocos (Keeling) Islands Territory or granting or taking any steps to grant any lease, licence or right to use or possess such property in any way and in particular in the land the subject of the Indenture, a copy of which is exhibit "GFT5" to the affidavit of Geoffrey Frank Totterdell filed herein. The costs of the application be paid out of the estate of the bankrupt. Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF ) ) GENERAL DIVISION ) ) ) ) WESTERN AUSTRALIA TO: WHEREAS : 1. No. 263 of 1986 RE: JOHN CECIL CLUNIES-—-ROSS A Bankrupt Ex Parte: GEOFFREY FRANK TOTTERDELL, the Trustee of the property of John Cecil Clunies-Ross, a bankrupt. Applicant and JOHN CECIL CLUNIES—-ROSS Respondent LETTER OF REQUEST The Justices of the Supreme Court of the Cocos (Keeling) Islands John Cecil Clunies-Ross ("the Bankrupt") became a bankrupt on 12 May 1986 upon acceptance of his petition presented to the Registrar in Bankruptcy for the Bankruptcy District of Western Australia under the provisions of the Bankruptcy Act 1966 of the Commonwealth of Australia ("the Act") and Geoffrey Frank Totterdell ("the Trustee") a registered trustee in bankruptcy under the Act was appointed the trustee of the estate of the Bankrupt. 2. It appears from information given to the Trustee by the Bankrupt that the Bankrupt would be, but for his bankruptcy, entitled to or possessed of certain real and personal property ("the Property") located in the Cocos (Keeling) Islands Territory. 3. It has been represented to this Court that it is necessary for the purposes of justice and the due administration in bankruptcy of the estate of the Bankrupt under and in accordance with the bankruptcy laws of the Commonwealth of Australia that the property should be made available to the Trustee as trustee of the estate of the Bankrupt so that it may be dealt with by him under and in accordance with those laws for the purpose of realising it for the benefit of the creditors of the Bankrupt. 5. In order that the Property may be so made available and dealt with it is necessary to request the aid of your Honourable Court. Now I, ROBERT SHENTON FRENCH, as a Judge of the Federal Court of Australia, do hereby request, that for the above reasons and for the assistance of this Federal Court you, as the Justices of the Supreme Court of the Cocos (Keeling) Islands Territory or one or more of you: (a) Vest in the Trustee the property real and personal of the Bankrupt in the Cocos (Keeling) Islands Territory and the possession and control thereof, with liberty to 3. sell and lease the same and receive the proceeds of such sale or leasing and with authority to take such steps and do such acts and things as may be necessary for those purposes; (b) Grant such orders on application by the Trustee as may be necessary and proper for the purpose of implementing the order in paragraph (a) above and ancillary thereto. DATED at Perth this day of 1988 JUDGE IN THE FEDERAL COURT OF AUSTRALIA BANKRUPTCY DISTRICT OF THE STATE OF ) ) GENERAL DIVISION ) ) ) ) WESTERN AUSTRALIA No. 263 of 1986 RE: JOHN CECIL CLUNIES-ROSS A Bankrupt Ex Parte: GEOFFREY FRANK TOTTERDELL, the Trustee of the property of John Cecil Clunies-Ross, a bankrupt. Applicant and JOHN CECIL CLUNIES—ROSS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 23 AUGUST 1988 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The respondent be and is hereby restrained until the determination by the Supreme Court of the Cocos (Keeling) Islands Territory of the matters raised in the letter of request or further order from, by himself, his servants or agents taking any steps to dispose of any interests he may have in real or personal property in the Cocos (Keeling) Islands Territory or granting or taking any steps to grant any lease, licence or right to use or possess such property in any way and in 2. particular in the land the subject of the Indenture, a copy of which is exhibit "GFT5" to the affidavit of Geoffrey Frank Totterdell filed herewith. The matter be adjourned to 10.30 am on Friday, 26 August 1988 for further orders. Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT ) OF AUSTRALIA ) GENERAL DIVISION ) BANKRUPTCY DISTRICT ) OF THE STATE OF ) WESTERN AUSTRALIA ) No. 263 of 1986 RE: JOHN CECIL CLUNIES-—ROSS A Bankrupt Ex Parte: GEOFFREY FRANK TOTTERDELL, the Trustee of the property of John Cecil Clunies-Ross, a bankrupt. Applicant and JOHN CECIL CLUNIES-ROSS Respondent CORAM: FRENCH J. 23 August 1988 REASONS FOR JUDGMENT John Cecil Clunies-Ross became a bankrupt on 5 May 1986 upon acceptance of his petition presented to the Registrar in Bankruptcy for the Bankruptcy District of Western Australia. His trustee in bankruptcy is Geoffrey Frank Totterdell. At the time he became bankrupt Mr Clunies-Ross was the owner of certain real and personal property located in the Cocos (Keeling) Islands Territory. His title to the land can be traced back to an Indenture dated 7 July 1886 by which Sir Frederick Weld, the Governor of the Straits Settlements, acting on behalf of Queen Victoria, granted to George Clunies-Ross and his heirs "ALL AND SINGULAR the lands situate and being above high water mark 2. within the Cocos Islands including the Northern Island otherwise called the North Keeling Islands". It is not in issue that Mr Clunies-Ross is the present day successor in title to George Clunies-Ross under the Deed of Indenture. In 1978 all the land the subject of the grant, save for a family residence and certain surrounding land and associated dwellings, were transferred to the Commonwealth of Australia. As to the house, land and certain personal property remaining, it is said to be property which forms part of the bankrupt estate and which should be available to the creditors. In pursuance of that claim the trustee brings this application which, in its amended form, seeks orders in the following terms:- "(a) An order that a letter of request should issue requesting the Supreme Court of the Cocos (Keeling) Islands Territory to act in aid of and be auxiliary to this Honourable Court in the following manner: (i) By vesting in Geoffrey Frank Totterdell, the person appointed under the Bankruptcy Act 1966 as the trustee in bankruptcy of the Estate of John Cecil Clunies-Ross, the possession and control of the property real and personal of the said John Cecil Clunies—Ross in the Cocos (Keeling) Islands Territory, with liberty to sell and lease the same and receive' the proceeds of such sale or leasing with authority to take such steps and do such acts and things as may be necessary for those purposes. (ii) Alternatively by vesting in the Official Assignee appointed under s.69 of the Bankruptcy Ordinance 1888 (Singapore) continued in operation in the Territory by s.8 of the Cocos (Keeling) Islands Act 1955 (Commonwealth), the possession and control of the property real and personal of the _ said John Cecil Clunies-Ross in the Cocos (Keeling) 3. Islands Territory, with liberty to sell or lease the same and receive the proceeds of such sale or lease with authority to take such steps and do such acts and things as may be necessary for those purposes and to remit the moneys coming to him by the sale or leasing of the said property to the said Geoffrey Frank Totterdell, after payment out of the said moneys of any proper charges on the said property that may be lawfully payable, and of the costs, charges and expenses incurred by the said Official Assignee in respect of the matters aforesaid. (b) In the alternative, a declaration that the property real and personal of the said John Cecil Clunies-Ross in the Cocos (Keeling) Islands Territory has vested in Geoffrey Frank Totterdell, the person appointed under the Bankruptcy Act 1966 as the trustee in bankruptcy of the Estate of John Cecil Clunies-—Ross. (c) An order restraining the said John Cecil Clunies-Ross by himself, his servants or agents from disposing or taking any steps to dispose of any interest he may have in real or personal property in the Cocos (Keeling) Islands Territory or granting or taking any steps to grant any lease, licence or right to use or possess such property in any way and in particular in the land the subject of the indenture a copy of which is exhibit "GFrT5" to the affidavit of Geoffrey Frank Totterdell filed herewith." The order for a letter of request 1s sought pursuant to s.29(4) of the Bankruptcy Act 1966 which provides:-— "(4) The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in bankruptcy to act in aid of and be auxiliary to 1t 1n any matter of bankruptcy." Before turning to the merits of the application it is convenient to set out the constitutional and statutory history which forms the backdrop to the present legal relationship between Australia 4. and the Territory. In doing so I should acknowledge the assistance derived from various writings including Roberts-Wray Commonwealth and Colonial Law (1966) pp.133-134, pp.882-883; Kelly - Constitutional Confusion in the Cocos Islands (1983) 13 FLR 229; Tahmindjis - Australia, The Cocos Islands and Self Determination (1986) Qld. Institute of Technology Law Journal 177. A diagram showing the various steps from first discovery to territorial status is attached to and forms part of these reasons. The Colonial Evolution The Cocos (Keeling) Islands, located in the East Indian Ocean, comprise 27 small coral islands in two atolls, 26 in' the southern atoll and 1, North Keeling Island, in the northern atoll. They occupy a total land area of 14 square kilometres. When first discovered by William Keeling, a British mariner, in 1609, they were evidently uninhabited. In 1826 they were settled by an Englishman, Alexander Hare, described variously as "an adventurer" - Encylopaedia Britannica ~ and " a degenerate eccentric" — Kelly (supra) at p.241,. In the following year Captain John Clunies-Ross, a business associate of Hare, established a second settlement. Hare left the Islands in 1831 but Clunies—Ross remained and established a coconut plantation with the aid of imported Malay labour. In 1857 the Islands were declared by Captain Fremantle of the HMS Juno to be part of the British Dominions. In 1878 by Letters Patent the Governor of Ceylon was made Governor of the Islands. In 1886 by further Letters Patent, 5. the responsibility for their administration was transferred to the Governor of the Straits Settlements as Governor of the Cocos Islands. In the same year all the land comprised in the Islands was granted by Indenture to George Clunies-Ross, the grandson of Captain John Clunies-—Ross. The grant under the Indenture was expressed to be subject to a number of provisoes including a condition against alienation without the prior approval of the Crown. It provided for discretionary forfeiture of the land the subject of the grant in the event of a failure to observe any of its conditions. In 1903 the Islands became part of the Straits Settlements under an Order in Council of 20 May 1903. During the Japanese occupation of Singapore they were administered by the Governor of Ceylon. Immediately post-war the Straits Settlements were a single colony comprising the Settlement of Singapore; the Cocos (Keeling) Islands; Christmas Island; the Settlement of Penang (including Province Wellesley); the Settlement of Malacca; the Settlement of Labuan and their dependencies. Pursuant to the Straits Settlements (Repeal) Act 1946, the Straits Settlements Act 1866 was repealed with effect from a date to be fixed by Order in Council and on the same date the Straits Settlements were to cease to be a single colony. The Act also made provision for an Order in Council to divide the settlements into such territories as might be directed to be governed either singly or in conjunction with such other territories as might be specified. The Act provided that the Order could contain such provisions:- 6. "(a) determining the laws which, on and after the appointed day, are (subject to amendment or repeal by any competent legislature or authority) to remain valid as laws of any of the said territories, notwithstanding the change in the Government thereof effected, by the Order; (b) adapting or modifying any such laws as aforesaid, and any other laws in force at the passing of this Act relating or referring to any of the _ said territories; (c) dealing with incidental, supplementary or consequential matters, as appear to His Majesty 1n Council necessary or expedient in view of any such change as aforesaid." By the Straits Settlements (Repeal) Order in Council, 1946 (No.462) the appointed date was fixed as 1 April 1946. By the Singapore Colony Order in Council, 1946 (No.464) it was ordered in Article 3 that: "The Island of Singapore and its dependencies, the Cocos or Keeling Islands and Christmas Island shall be governed and administered as a separate Colony and shall be called the Colony of Singapore." Provision was made in the Order for the appointment of a Governor (Art.4) and the establishment of an Executive Council (Art.13). By Art.14 a Supreme Court was established with "unlimited civil and criminal jurisdiction". It was to be a Court of Record which could consist of a High Court and a Court of Appeal. Provision was made for the appointment of a Chief Justice and Judges (Art.14(2)) and the prescription of the constitution powers and procedure of the Court by laws made under the Order in Council (Art.14(3)). 7. A Legislative Council was established (Art.16) and the Governor given power, with its advice and consent, to make laws for the peace, order and good government of the colony (Art 28). Transitional provisions continued "existing laws" (Art.42), the definition of which included common law and "the doctrines of equity". (Art.2) From British Colony to Australian Territory In 1955 the Islands became a Territory of the Commonwealth of Australia. The process of transfer involved the passing of an Act of the Parliament of the United Kingdom extending to Australia and it was therefore necessary, in order to comply with s.4 of the Statute of Westminster, 1931, that Australia request and consent to that Act. This was done by the Cocos (Keeling) Islands (Request and Consent) Act 1954 (Cwth) s.3 of which provided:-~ "The Parliament requests, and consents to, the enactment by the Parliament of the United Kingdom of an Act enabling the Queen to place the Cocos or Keeling Islands under the authority of the Commonwealth and making provision for matters incidental to the placing of those Islands under that authority." By s.1 of the Cocos Islands Act 1955 (UK) the Queen was empowered to direct by Order in Council that on a date specified in the Order the Islands should cease to form part of the Colony of Singapore and be placed under the authority of the Commonwealth of Australia. 8. This was effected by the Cocos Islands Order in Council 1955 (No. 1642) which came into operation on 23 November 1955 and provided in Art.2:- "2. Upon the appointed day the Islands shall cease to form part of the Colony of Singapore and be placed under the authority of the Commonwealth of Australia." And by Art.3 it was provided:- "3(1) Subject to paragraph (4) of this Article, all property, rights and powers in or in connection with the Islands, being property, rights and powers which immediately before the appointed day, were held or enjoyed by or on behalf of Her Majesty in right of the United Kingdom or of the Colony of Singapore, or by or on behalf of the Government of the United Kingdom or of the Colony of Singapore, shall, from and including that date, be deemed to be held or enjoyed by or on behalf of the Commonwealth of Australia. (2) It is hereby declared that the rights and powers referred to in paragraph (1) of this Article, include among other things, all rights and powers vested in Her Majesty or in the Governor of Singapore (as successor to the Governor of the Straits Settlements) on Her Majesty's behalf under the Indenture dated the seventh day of July, 1886, made between Her Majesty Queen Victoria, the Governor of the Straits Settlements and George Clunies-—Ross." The other provisions of Article 3 are not material for present purposes. The Commonwealth Parliament in turn enacted the Cocos (Keeling) Islands Act 1955 which also came into effect on 23 November 1955. By s.5 of that Act the Islands were declared to be accepted by the Commonwealth "as a Territory under the authority 9. of the Commonwealth" to be known as the Territory of Cocos (Keeling) Islands. Section 6 of the Act mirrored the terms of Art.3 of the Order in Council in relation to the transfer of property rights and powers from the Queen in right of the United Kingdom or the Colony of Singapore to the Commonwealth. Section 7 transferred the rights and powers under the Indenture of 7 July 1886 vested in the Queen or the Governor of the Colony of Singapore. Important provisions relating to the continuity of the legal system are set out in Part III of the Act and in particular s.8 whereby subject to the Act or any other act extending to the Territory "all laws in force immediately before the proclaimed date in the Islands shall continue in force in the Territory by virtue of this Act and not otherwise". Powers or functions conferred by such laws upon the Governor of the Colony of Singapore or the Governor of that Colony in Council or any other person or authority may be exercised or performed by the Minister, the Governor~General or such person or authority as the Minister appoints respectively. Laws continued in force under the Act may be amended or repealed by ordinances made under it or by laws made under such ordinances (s.9). The Governor General is empowered to make ordinances for the peace, order and good government of the Territory (s.12). One such ordinance was the Supreme Court Ordinance 1955 which established a Supreme Court of the Territory with effect from 23 November 1955. The relevant terms of that ordinance are addressed later in these reasons. In 1979 the 10. Singapore Ordinances Application Ordinance was made. This provided for the repeal of the Ordinances of Singapore continued in force in the Territory by s.8 of the Act but provided inter alia that:- "5. The provisions of the Ordinances of Singapore specified in Schedule 2, being those Ordinances as in force in the Colony of Singapore on 31 December 1957, apply by force of this Ordinance in the Territory as Laws of the Territory." Relevantly for present purposes, Schedule 2 included a_ reference to the Bankruptcy Ordinance 1888 of Singapore. And by the Singapore Ordinances Application (Amendment) Ordinance 1981, subordinate legislation and orders including appointments and instruments made under ordinances continued in effect by the 1979 Ordinance were in turn deemed to have had effect from its commencement i.e. 20 December 1979. The Supreme Court By s.4 of the Supreme Court Ordinance 1955 made under the Act and published in the Commonwealth Gazette on 23 November 1955, the Supreme Court of the Territory of Cocos (Keeling) Islands ("The Supreme Court of Cocos") was established as a Superior Court of Record. Its jurisdiction is defined in s.9 of the Ordinance: "9, Subject to this Ordinance, the Supreme Court has, in all matters arising under a law of the Territory, and generally in relation to the Territory ~ il. {a) the same original jurisdiction, both civil and criminal as the Supreme Court of the Australian Capital Territory had in relation to the Australian Capital Territory immediately before the commencement of this Ordinance; (b) jurisdiction, with such exceptions and subject to such conditions as are provided by the laws of the Territory, to hear and determine — (i) appeals from judgments, orders, convictions and sentences of a District Court or Magistrate's Court; and (ii) points of law reserved by special cases submitted by a District Court or Magistrate's Court; and (c) such other jurisdiction, whether civil or criminal and whether original or appellate, as is conferred on the Supreme Court, or a Court referred to in section fourteen of the Ordinance, by a law of the Territory." Pre-existing ordinances continued in force by the Act were made applicable to the Supreme Court so far as they conferred jurisdiction or powers on courts. To this ends.i4 of the Ordinance provided: "14(1) A reference in a law continued in force in the Territory by section 8 of the Act to — (a) the Supreme Court of the Straits Settlements or the High Court or Court of Appeal being part of that Supreme Court; (b) the Supreme Court of the Colony of Singapore or the High Court or Court of Appeal being part of that Supreme Court; or (c) the Court of Criminal Appeal of the Straits Settlements or of the Colony of Singapore, shall be read as a reference to the Supreme Court established by this Ordinance, and a reference in any such law to the Chief Justice, a judge or two or more 12. judges of any such Court shall be read as a reference to the Judge of the Supreme Court established by this Ordinance." Sub-sections (2) and (3) of section 14 are not relevant for present purposes. The Judge of the Court is empowered to make rules of Court under s.23 of the Ordinance and the practice and procedure generally is governed by s.15 which, in cases where the Ordinance and Rules of Court are silent, applies the practice and procedure of the Supreme Court of the Australian Capital Territory as it existed at 23 November 1955. Jurisdiction in bankruptcy is derived from the Bankruptcy Ordinance 1888 of the Colony of Singapore. Section 87 of that Ordinance provides that the High Court of Singapore shall be the Court having jurisdiction in bankruptcy in the Colony. Section 90 gives to the Court under that jurisdiction: ",...£ull power to decide all questions of priorities and all other questions whatsoever, whether of law or fact, which may arise in any case of bankruptcy coming within the cognizance of the court, or which the court deems it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case." Specific discretionary powers with respect to costs, adjournment, amendment of process, extensions of time and the taking of evidence are conferred by s.92. In s.102 there 1s provision for the High Court to act in aid of courts having jurisdiction in bankruptcy in the Federation of Malaya. 13. By force of s.14 of the Supreme Court Ordinance 1955, the reference to the High Court in the Bankrutpcy Ordinance must be read as a reference to the Supreme Court of Cocos. On this basis the Supreme Court has auxiliary jurisdiction to act in aid of the Courts of Malaya. The Supreme Court also has, by virtue of s.9(a) of the 1955 Ordinance, the same original jurisdiction as the Supreme Court of the Australian Capital Territory had immediately before 23 November 1955. It is common ground however, and was expressly conceded by counsel for the applicant, that the latter court had no jurisdiction in bankruptcy at that time. This concession did not extend to the proposition that it did not have jurisdiction to respond to a request from a Court exercising jurisdiction in bankruptcy. Jurisdiction in Aid under Imperial Law Reference was made in the course of argument to. the provisions of the Bankruptcy Act, 1914 (UK) and in particular s.122 which is in the following terms: "The High Court, the county courts, the courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise, in regard to the matters directed by the order, such jurisdiction as either the court which made the request, or the court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions." 14. This section was the successor to the similarly worded s.118 the Bankruptcy Act, 1883 (Imp.). It is notable that in the Bankruptcy Act 1966 (Cwth) originally enacted, s.29 expressly preserved the operation s.122 of the Imperial Act of 1914: "29(1) All courts having jurisdiction under this Act, the judges of those courts and the officers of or under the control of those courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy. (2) Nothing in this Act shall be taken to affect the operation of section 122 of the Imperial Act known as the Bankruptcy Act, 1914." The section was amended by the Bankruptcy Amendment in as of Act 1980 which deleted the previous sub-s.(2) and inserted in thereof the new sub-ss. (2) to (5) inclusive. As amended s.29 now reads: "29(1) All Courts having jurisdiction under this Act, the Judges of those Courts and the officers of or under the control of those Courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy. (2) In all matters of bankruptcy, the Court - (a) shall act in aid of and be auxiliary to the courts of the external Territories, and of prescribed countries, that have jurisdiction in bankruptcy; and (b) may act in aid of and be auxiliary to the courts of other countries that have jurisdiction in bankruptcy. lieu 15. (3) Where a letter of request from a court of an external Territory, or of a country other than Australia, requesting aid in a matter of bankruptcy is filed in the Court, the Court may exercise such powers with respect to the matter as it could exercise if the Matter had arisen within its own jurisdiction. (4) The Court may request a court of an external Territory, or of a country other than Australia, that has jurisdiction in bankruptcy to act in aid of and be auxiliary to it in any matter of bankruptcy. (5) In this section, 'prescribed country' means - {a) the United Kingdom, Canada and New Zealand; (b) a country prescribed for the purposes of this sub-section; and {c) a colony, overseas territory or protectorate of a country specified in paragraph (a) or of a country so prescribed." In my opinion the comprehensive language of s.29 as it now stands in relation to the issue of and response to requests for aid between the courts of this country on the one hand and the courts of its external territories and foreign countries on the other, marks it as a code. I am reinforced in that opinion by the express deletion in 1980 of the former sub-s.(2) which preserved the operation of s.122 of the Bankruptcy Act, 1914 (UK). By its comprehensive scope and the terms of the 1980 amendment, the section evidences a legislative intent to exclude the operation of s.122 from courts having jurisdiction under the Bankruptcy Act 1966. The power of the parliament of the Commonwealth to effect that exclusion derives from s.2{2) of the Statute of Westminster, 1931. As Justice Nygh observes in his 4th edition of Conflict of Laws in Australia at p.478, referring to s.29 of the Bankruptcy Act 1966 and the like provisions of 5.135 of the Insolvency Act 1967 (NZ): 16. "These provisions which deal exclusively with the circumstances under which overseas orders are to take effect by necessary implication exclude any continued effect in Australia and New Zealand of the universally expressed vesting powers of the English Bankruptcy Act 1914 which they might have possessed prior to 1942 as a matter of Imperial Paramountcy." That is not to say that s.29 has worked a repeal of s.122 in its application to the Supreme Court of Cocos. For s.29 had no application to that court, governed as it was and still is in the exercise of its bankruptcy jurisdiction by the Bankruptcy Ordinance 1888 as it stood at 31 December 1957. The Issues for Determination The issues' that arise upon this application are threefold: 1. Does this Court have power to issue the letter of request or make the declaration sought? 2. Does the Supreme Court of the Cocos (Keeling) Island Territory have the power to act upon the proposed letter of request from this Court? 3. As a matter of discretion should the letter of request or the declarations sought be granted? The Power to Request and Respond The Federal Court of Australia 1s empowered by s.29(4) of the Bankruptcy Act 1966 to issue a letter of request to the Supreme Court of Cocos, for that is a court of an external 17. territory which has jurisdiction in bankruptcy. The existence of that power in this Court, however, says nothing about the power of the requested court to act pursuant to the request. Whether the requested court be that of an external territory or a_ foreign country, its ability to respond will depend upon the laws by which its jurisdiction is defined and its powers conferred. So far as the Supreme Court of Cocos is concerned, the Bankruptcy Act 1966 does neither. Counsel for the applicant submitted nevertheless that the court does have power to act upon the proposed request. That power, it was submitted, is derived from three alternative sources namely: 1. The Bankruptcy Ordinance 1888 (Singapore) read with s.9(c) of the Supreme Court Ordinance 1955. 2. The general civil jurisdiction conferred by s.9{(a) of the Supreme Court Ordinance and defined by reference to the jurisdiction of the Supreme Court of New South Wales. 3. Section 122 of the Bankruptcy Act, 1914 (Imp). The Bankruptcy Ordinance 1888 (Singapore) The first propounded source can readily be excluded. Under the 1888 Ordinance the High Court of Singapore had an obligation to act in aid of and be auxiliary to the courts having jurisdiction in bankruptcy and insolvency of the Federation of 18. Malaya. And that obligation would have continued in force in relation to the Supreme Court of Cocos upon the passing of the 1955 Ordinance. But there is, in the Ordinance of 1888, no general power to act in aid which would authorise a response to a request from this Court. Of course, the High Court of Singapore as part of the Supreme Court of that Colony created by the Singapore Colony Order in Council 1946, would have been a British Court and thus have attracted the provisions of s.122 of the Bankruptcy Act, 1914 (UK). And although in the event it is unnecessary to decide the question, it seems unlikely that that section, conferring a power outside the framework of the Ordinance, could be applied indirectly to the Supreme Court of Cocos by force of sub-s.9(c) and 14(1) of the Supreme Court Ordinance 1955. Given the limited and highly specific nature of the duty imposed by s.102, I am not able to find in the Ordinance of 1888 some implied duty and incidental power to act upon letters of request from courts other than those of the Federation of Malaya. The Jurisdiction derived from the Supreme Court of New South Wales The applicant also relied upon the general civil jurisdiction defined by s.9({a) of the Supreme Court Ordinance 1955. Section 9{a) confers on the Court the same civil jurisdiction as the Supreme Court of the Australian Capital Territory had in relation to the Australian Capital Territory 19. immediately before the commencement of the Ordinance. It was expressly conceded by counsel for the applicant, that as at 23 November 1955 the Supreme Court of the ACT did not have any jurisdiction in bankruptcy. It was pointed out however that its jurisdiction at that date was defined in the Australian Capital Territory Supreme Court Act 1933 by reference to the civil and criminal jurisdiction of the Supreme Court of New South Wales immediately before 1 January 1911. This led on to the submission that the Supreme Court of Cocos was a superior court of record. But having regard to its explicit characterisation as such by s.4 of the 1955 Ordinance, the reference to the jurisdiction and character of the New South Wales Supreme Court was unnecessary for that purpose. And its characterisation as such does not necessarily confer upon it the jurisdiction to aid the Federal Court in the exercise of its bankruptcy jurisdiction which, for both courts, 1s statutory in origin. The jurisdiction of the New South Wales Supreme Court in bankruptcy as at 1911 was defined by the Bankruptcy Act, 1898 (NSW), a statute which contained no reference to a power to act in aid of other courts. It may well be that it was felt at the time that the duty and associated power to so act was adequately provided for by s.118 of the Bankruptcy Act 1883 (Imp.), the predecessor to s.122 of the Bankruptcy Act 1914 (UK). As to that, there is no doubt that the Supreme Court of New South Wales would have been regarded as a British Court for the purposes of s.118. There is therefore no jurisdiction in aid in bankruptcy to be 20. derived from the statutory chain linking the Supreme Court of Cocos to the Supreme Court of New South Wales apart from that under s.118 of the 1883 Imperial Act. And that jurisdiction, as will be seen, is reinforced by the direct application of 5.122 of the Bankruptcy Act 1914. Section 122 of the Bankruptcy Act 1914 (UK) As I have already observed the operation of s.122 in relation to the Federal Court is excluded by virtue of its implied repeal in that application by the 1980 amendments to s.29 of the Bankruptcy Act 1966. That amendment did not, however, touch upon the application of the section to the Supreme Court of Cocos. 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 "British courts" for the purposes of the section. 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 21. 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 course of his judgment Scarman LJ said at 72: "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 22. 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) 86 WN (NSW) 323. 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 of Laws at 705: "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 23. 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 assume the title Queen of Australia. 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 bankruptcy jurisdiction. 24. Discretion to Issue Letter of Request 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 25. 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 vesting order should be unconditional. 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 26. 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 of increased costs. 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 terms of para.(a)(ii) of the application. 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. 27. CONCLUSION 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 that minimum requirement. ve 28. SCUCMATIC DIAGRAM OF CONSTITUTIONAL HISTORY we OF Cocos (KEELING) ISLANDS TCRRITORY 1826 uap7 1939-45 Discovery by William Keeling First settlement by Hare Settlement by J. Clunies-Ross Hare departs Annexation by U.K. Captain Fremantle UMS Juno Letters Patent appoint Governor of Ceylon as Governor of Islands Letters Patent transfer administration Eo Governor of Straits Settlements Deed of Indenture grants land to G Clunies-Ross Order in Council 20.5 03 Islands become pact of Straits Settlements Islands administered from Ceylon 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 Isiands Act 1955 (U.K ) Cocos Islands Order in Councal 1955 Cocos (keeling) Islands Act 1955 (Cwth)y Supreme Court Ordinance 1955 Cocos (Keeling) Islands became a territory of the Commonwealth of Australia and a Supreme Court 1s established State of Singapore Act 1958 Singapore Constitution Order in Totncil [958 State of Singapore established. Acquisition of land from J. Clunies-Ross by Comnonwealth of Australia Singapore Ordinances Application Ordinance LITT Repeal of all Singapore Ordinances continued in force and continuation un force of Ordinances as amended and other Ordinances as at 31.12.57 including Bankruptcy Ordinance 1888 Singapore Ordinances Application (Amendment) Ordinance L981 Continuation of Merchant Shipping Port Rules and various appointments. 29. I certify that this and the preceding twenty eight (28) pages are a true copy of the Reasons for Judgment of his Honour Justice French. Associate: J Date: QA 8 8% 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 Dates of Hearing: 1 and 2 October 1987 Date of Judgment: 23 August 1988