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PUBLIC RECORD OFFICE

Reference :--

TPLLC.O. 81

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885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

15 PUBLIC RECORD OFFICE, LONDON

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That Mr. Bertram Cox was to request us to be good enough to take the papers into our consideration, and to report:-

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(I.) Whether we concurred in the propositions advanced in paragraphs 4 to 6 of his letter, and if not in what respects they should be modified?

(II.) What were the legal rights of the Cable Companies with respect to the foreshore in Gibraltar and the Straits Settlements in the case of the cables landed in those Colonies respectively?

We have taken the papers into our consideration, and have the honour to

Report-

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(1.) That as regards paragraphs 4 and 5 of Mr. Bertram Cox's letter of the 12th August, we agree with the conclusion arrived at that the rights of the Com- panies are not rights of tenure but rights of contract.

With reference to the conclusion stated in paragraph 6, we think (1) (2) (4) and (5) are accurate. As regards (3) the question whether the licence is revocable at will must depend upon the nature of the contract to be deduced in each case, and we do not think that such terms, e.g., as are contained in the minute of 19th July, 1869 (page 88 of the print dated December, 1901), constitute a mere licence at will. The case of" Wood v. Ledbitter" cannot now be relied upon; it was a decision merely on the Common Law, and had no application to the question of the right in equity to enforce the performance of a contract of such a nature.

2. In view of the terms of the arrangements in the cases of Gibraltar and the Straits Settlements we do not think that the licence could be revoked during the life of the cable which was laid upon the faith of its being granted.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

The Right Honourable the Secretary of State for the Colonies.

42701

SIR,

No. 205.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

[Petition of Right of Faiz Mahomet.]

Royal Courts of Justice,

21st November, 1903. We were honoured with your commands signified to us by Mr. Bertram Cox in his letter of the 4th instant, stating that he was directed by you to request our consideration of a Petition of Right submitted for presentation to His Majesty by Messrs. Harvey and Harvey, Solicitors in Western Australia, on behalf of one Faiz Mahomet.

That the facts of the case were set forth in the Petition and in the report of a Select Committee of the Assembly of Western Australia which was appointed to consider the question of Faiz Mahomet's claims, and which would be found attached to the Petition. That on the receipt of this Petition a confidential despatch was addressed to the Governor suggesting that it might be possible for the Crown in Western Australia to waive the protection afforded by Section 37 of the Crown Suits Act, 1898, of that Colony and to allow the case to be brought before the Courts, as it appeared that proceedings under that Act were not taken by the Petitioner until after the limit of time fixed by Section 37 of the Act above referred to.

That it would be seen, however, that the Prime Minister, in a Minute addressed to the Governor of the 16th of September, 1903, declined to waive any objections or defences available to the State, and that the question accordingly arose whether, notwithstanding the fact that the Petitioner neglected to avail himself of the remedy given to him by the Crown Suits Act of 1898 until it was too late, he should, never- theless, be entitled to proceed by Petition of Right.

That he was to request us to report :-

(1) Whether the remedy of a Petition of Right is taken away or restricted or rendered improper by the local Act of Western Australia, No. 9 of 1898?

(2) If not, whether, notwithstanding the fact that the Petitioner neglected to avail himself of the remedy open to him by law, he is still entitled to his remedy by Petition of Right?

(3) Whether the Petition of Right should have been in the first instance pre- sented to the Governor of Western Australia, and, if so, whether it should be returned to the Petitioner and the Petitioner informed that this course should be adopted?

(4) If so, whether the Petition can be then presented to His Majesty through the Secretary of State and granted, should it seem expedient to give it favourable consideration?

(5) Whether, having regard to all the circumstances the case is one in which

a fiat ought to be granted?

(6) If so, what should be the form of the endorsement and what should be the procedure to be adopted when it has been so endorsed?

We have taken the matter into our consideration, and, in obedience to your commands, have the honour to

Report-

(1) That the remedy of Petition of Right is not taken away by the local Act of Western Australia, No. 9 of 1898.

The fact, however, that such local Act provides a remedy in the Colony must be considered in determining whether His Majesty should be advised to grant his fiat, and would, no doubt, in some cases afford a reason for refusal upon the part of His Majesty to endorse the Petition.

(2) We think so.

(3) No.

(4) Does not arise.

(5) In our opinion the case is one in which His Majesty should be advised to grant his fiat. A Committee of the Legislative Assembly of Western Australia has

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