CO885-(16-18) — Page 1

PUBLIC RECORD OFFICE

Reference :-

TLC.O.885

سلسلسالسا

16 PUBLIC RECORD OFFICE, LONDON

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question, discussed in the correspondence with the Admiralty, briefly is can the Whole of Australia be regarded as a British possession, with the Federal High Court as its Colonial Court of Admiralty, for the purposes of the Act of 1890, and at the same time its constituent parts, the six States, remain also British possessions retain- ing their several Colonial Courts of Admiralty for the purposes of that Act?

9. I am to request you to take this letter and its enclosures into your considera- tion, and to be good enough at your early convenience to report :-

32079

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Colonial law" within Section 4 (1) Whether the Judiciary Act, 1914, is a

of the Colonial Courts of Admiralty Act, 1890: (2) If so, whether the conditions laid down in that section should have been

observed with regard to it:

(3) If so, what are the consequences of non-observance, and what steps (if any) should be taken to complete its legal effect, and, in particular, whether it would be proper and sufficient to signify His Majesty's assent to the Act by Order in Council :

(4) Whether Australia as a whole and each of the six States are concurrently British possessions for the purposes of the Colonial Courts of Admiralty Act, 1890, or whether the passing of the Judiciary Act, 1914, has the effect of making Australia as a whole a British posses- sion to the exclusion of the six States for those

and thereby purposes, destroys the ordinary Admiralty jurisdiction of the States Courts': (5) Generally with regard to the subject of this letter."

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I am,

&c.,

REPORT.

HENRY LAMBERT, for the Under Secretary of State.

1. In our opinion the answer to this question is in the affirmative. There does not appear to us to be any inconsistency between Section 76 of the Constitution Act (63 & 64 Vic., C. 12) and Section 4 of the Colonial Courts of Admiralty Act, 1890, nor could it be successfully contended that Section 4 was impliedly repealed so far as Australia is concerned.

2.

Yes.

3. The Act is at present invalid.

If any acts have been done under the Act it may be necessary to validate them by Act of Parliament, but, if not, it would be proper and sufficient to signify His Majesty's consent to the Act by Order in Council.

4. We are of opinion that Australia as a whole and each of the six States are concurrently British possessions for the purposes of the Colonial Courts of Admiralty Act, 1890. There is nothing in the Judiciary Act, 1914, declaring that the jurisdiction thereby created in the High Court shall be exclusive, and, therefore, the jurisdiction of the States Courts remains subject to the provisions of the Judi- ciary Act, 1903-1910.

Law Officers' Department,

10th July, 1915.

EDWARD CARSON.

F. E. SMITH.

26390

No. 188.

(STRAITS SETTLEMENTS.)

COLONIAL OFFICE to LAW OFFICERS,

[Petition_of_the late Mr. W. W, Fisher to His Majesty in Council praying for compensation for his compulsory retirement.]

GENTLEMEN,

Downing Street, 30th June, 1915. I AM directed by Mr. Secretary Bonar Law to transmit to you a copy of a petition addressed to His Majesty in Council by the late Mr. W. W. Fisher, formerly Puisne Judge of the Supreme Court of the Straits Settlements, with regard to his retirement from his appointment.

2. The facts relating to Mr. Fisher's appointment to this office were as follows; He was appointed by Letters Patent passed under the public seal of the Colony and dated the 20th May, 1905, and the covering letter of even date forwarding the Letters Patent to him stated that they were issued in accordance with the Warrant of His Majesty the King. This statement was, however, incorrect, no such warrant naving been issued. An inquiry made by Lord Elgin in 1907 led to the corres- pondence referred to in paragraphs 6-8 of the petition, from which it appears that a second instrument of appointment was then issued to Mr. Fisher, that it was returned by him to the Colonial Secretariat and cancelled, and that he remained in possession of the original Letters Patent of the 20th May, 1905. This, then, was the instrument by which he was appointed, and the position was, and is, that it was a valid instrument of appointment issued by the Governor, not, as erroneously stated in the covering letter of 20th May, 1905, under a Royal Warrant, but under his powers by virtue of his Commission and Clause XIV. of the Letters Patent of 30th December, 1891 (copies enclosed), which powers were expressly saved by Section 4 of the Courts Ordinance III. of 1878 (printed on page 15 of the petition).

3. It will be observed that Mr. Fisher held office during pleasure, and it is conceived that, this being so, he was not, although appointed by Colonial Letters Patent, the holder of a patent office within the meaning of Burke's Act (22 Geo. III., c. 75), and would not have had an appeal as of right to His Majesty in Council under that Act if he had been amoved from office (ex parte Robertson, 11 Moore, P.C. 228).

4. Mr. Fisher was not, however, in fact, amoved or suspended, but was called upon to retire on pension by the Governor of the Straits Settlements under Section of Ordinance No. 8 of 1887, as amended by Ordinance No. 4 of 1912 (which are quoted on page 18 of his petition). As, however, he contended that the Ordinance under which he was called upon to retire did not apply to his case, his complaint was, in effect, that his retirement was in substance tantamount to amotion. In the circumstances, it appeared to the Secretary of State that this was a case for a special reference to the Judicial Committee of the Privy Council under Section 4 of the Act 3 and 4 William IV., c. 41, and he proposed, therefore, to transmit the petition to the Lord President of the Council with a recommendation that it should be referred to the Judicial Committee.

5. Mr. Fisher, however, died on the 2nd June, and the question arises whether it is any longer necessary or proper that his petition should be referred to the Judicial Committee of the Privy Council. His solicitor has stated that Mr. Fisher's wife, whom he appointed sole executrix, will carry on the proceedings.

6. Mr. Fisher, as was stated in paragraph 4, was not amoved, and the question raised by his petition was whether the Pensions Amendment Ordinance of the Straits Settlements applied to his case, and, if not, in what manner and to what extent he should be indemnified. So long as he was alive it appeared to the Secretary of State that he was bound to advise His Majesty to refer the petition to the Judicial Committee of the Privy Council, since the Judicial Committee might have found that the Ordinance did not apply to him and might, in consequence, have expressed the opinion that he should be reinstated in his office. Now that he is dead the only form of indemnity possible is some pecuniary compensation which would be added

to his estate.

7. It appears to Mr. Bonar Law doubtful whether a claim to such compensa- tion by Mr. Fisher's personal representative is a matter which ought to form the subject of a special reference to the Judicial Committee under Section 4 of the Act 3 and 4 Will. IV., c. 41, which was intended to provide for the consideration

(0781-2) Wt. 7-939. 16. 12/15. D&S, 0.1.