I desire to ask the Minister if he would be good enough to consider the definition of Dáil Court in order to make it clear that that definition includes Land Commission Court. The matter arises in this way. I am aware that most of the Land Commission Court decrees have been carried out or dealt with by assignment. The Minister so informed me in reply to a question. There are still a few cases outstanding which have not been dealt with by assignment. In addition to that, however, there is a class of case which has probably escaped the attention of the Minister, and that is the numerous cases arising out of the Bolshevism in the West, a matter in which the First Dáil, and in particular the Land Commission Court of the First Dáil, proved signally successful. A good many decrees were given for damages, very well deserved. The people who went to the County Court under the English system got their damages and got paid, whereas the people who went to our Courts are still waiting for their money. I do not know how far that is general, but I know one solicitor who has six or seven of those cases in which damages were awarded. On account of the suppression of the Dáil Courts he has been unable to get his money. I think that solicitor has sent particulars to the Minister. I would ask the Minister, if there be no objection, to include Land Commission Courts in the expression " Dáil Court." In that connection I may refer the Minister to the official account of the First Dáil, in which he will find the matter of the Land Commission dealt with. In the report for August, 1920, at page 199, it is set out that it was decided to set up a Commission, subject to the report of a Special Committee, and at page 232 it is stated the Special Committee having reported favourably, the Land Commission Bill was passed. It is not quite clear whether the Land Commission Courts sat under that decree, or sat under a decree of the Minister for Home Affairs. I rather gather, from what is reported in the debates, that the Land Courts sat before the Commission was established, in which case they are also included in that definition. As there are quite a number of people who are entitled to get paid damages awarded to them in very proper circumstances, I would ask the Minister if he has no objection, to put in words which will give those the benefit of decrees in the same way as if they had been got under some other Court established by the Dáil.
DAIL IN COMMITTEE. - DAIL EIREANN COURTS (WINDING UP) BILL, 1923.
Mr. O'HIGGINS
I am advised that the affairs of the Land Settlement Courts cannot be dealt with in this Bill. When the Bill was in process of preparation my Ministry asked the Ministry of Agriculture whether it was advisable to deal with the affairs of the Land Courts in this Bill, and in all the circumstances they considered it was not advisable. My feeling in the matter is that I ought not to break the Eleventh Commandment: "Thou shalt not butt in." I shall leave it to the Minister for Agriculture, if he thinks a Bill is necessary, to introduce such a Bill himself.
Motion made and question put: "That Section 1 stand part of the Bill."
Agreed.
I move Amendment 1:—" In Sub-section (1), line 42, to insert immediately after the words `Dáil Court' the words `other than the Dáil Supreme Court,' and at line 47 to insert immediately after Sub-section (1) a new Sub-section as follows:—
" (2) Any person who claims to be aggrieved by any registered decree of a Dáil Supreme Court, and who was a party to the proceedings in which such decree was made, or is otherwise bound by such decree, may apply within the prescribed time, and in the prescribed manner, to the Commissioners for leave to appeal to the Commissioners from such decree, and in the event of such leave being granted, such person may appeal within the prescribed time, and in the prescribed manner, to the Commissioners from such decree, and thereupon the Commissioners shall hear and determine such appeal."
The Section gives the right of appeal to the Commissioners. The object of the amendment is to provide, in the case of a decision by a Dáil Supreme Court, an appeal by special leave of the Commissioners. The Supreme Court was a Court constituted of lawyers, and it is not therefore considered right that, as a matter of course, there should be an appeal from that.
In Sub-section 4 of this section I desire to call attention to a fact which I think has escaped observation in the drafting of this Bill. Sub-section 4 provides that no registered decree of a Dáil Court shall be capable of being sued upon or enforced before or by any Court except as authorised by this Act. I speak under correction, but I am under the impression that the effect of that statement, as it stands, would be to prevent a setting up of a Dáil decree duly registered as a set-off or a counterclaim in any proceedings in the other Courts. Supposing you have a judgment of the Dáil Court for £100 in your favour and the defendant brings an action against you, not having paid that £100, surely you ought to be able to set up in defence pro tanto the fact that he owes you £100 as certified by the Dáil Court. I think that Sub-section 4, when it refers to the steps authorised by this Act, contemplates Section 19, which deals with the enforcement of Commissioners' Orders and Dáil Court Decrees, and provides that those Orders and Decrees are to be enforced by the Under-Sheriff in the usual way. I am inclined to think that nowhere is there any provision which, in face of Sub-section 4, would enable one to set up in the other Court a Decree which one had duly obtained and registered in the Dáil Court. I do not think that that is intended. I would ask that that be amended in the Report Stage, if I am right in my premises.
Mr. O'HIGGINS
The point the Deputy raises is new, and I am not in a position to deal with it at the moment. I will undertake to look into it between now and the Report Stage.
Motion made and question put: "That Section 5, as amended, stand part of the Bill."
Agreed.
I move in Sub-section 1 to insert the word "other" immediately after the word "Court" in line 31 and in line 32.
It is merely a drafting amendment. The Commissioners are themselves a Court. Any reference to other Courts in the section should describe them as other Courts.
On Section 20, I should like to ask is there any provision making it clear that the Commissioners can award costs. I think that is rather a serious lacuna in the Bill. Section 20 deals with the general powers of the Commissioners. It gives them power "to hear and determine," and then it gives them certain specific powers. I do not think it can be said that the power to award costs is given by Section 20. I do not think myself that it is implied by Section 20. If one looks at Section 4 one sees the phrase "the Commissioners shall hear and determine," and that same phrase is used in subsequent sections. When the matter comes before the Commissioners they are told they are "to hear and determine." I have failed to find in the Act any further powers which would enable them to give costs in these matters.
I think it will be obvious to anyone that it is very important that the Commissioners should have power to give costs, which very often will be a considerable item to a person who has suffered. I cannot help thinking that if that power is not given in the Act it must be an oversight. It is, I think, intended that it should be given. I think the Minister will see that it is necessary if it is his desire—as I think it must be— that the Commissioners and Assistant Commissioners should have the ordinary powers of a Judge to award costs, that express words to that effect should be put into Section 20.
Mr. O'HIGGINS
Would it not come under Section 22?
I think that only deals with Court fees. It may be noticed in Section 21, where the Commissioners are directed to make and publish rules, that there is no specific mention of a rule as to costs. I cannot help thinking the matter has been forgotten.
Mr. O'HIGGINS
The matter will be looked into.
I take it it is the intention of the Ministry that the Commissioners shall have power to award costs?
Mr. O'HIGGINS
It is the intention. As far as I can see there is an omission, except the fact that the Commissioners, being themselves a Court, the power of awarding costs might be deemed to be inherent in them. The closing words of the section are considered to cover the point: "All proceedings before the Commissioners shall, in law, be deemed to be judicial proceedings before a Court of Record."
May I point out that that particular sub-section deals only with special matters, although the last words may be intended to be general? I hope the Minister will put in a specific clause dealing with the power to award costs.
Motion made and question put: "That Section 20, as amended, stand part of the Bill."
Agreed.
I move Amendment 4: To insert immediately after the word "prescribed" in line 13 the words "by orders made," and to add a new sub-section as follows:—
"(2) Orders made under this section may (notwithstanding anything contained in the Public Offices Fees Act, 1879) regulate the method and manner of collecting and accounting for the fees prescribed by such orders."
It is intended that the fees to be charged by the Commissioners shall go into the Dáil Courts Fund, and not into the Exchequer. It is for that reason it is necessary to put in that proviso.
I move Amendment 5: "To insert immediately before Section 26 a new section as follows::—
(1) In any case in which a judgement, decree, or order was on or after the 1st day of August, 1920, given or made by any Court against any person in his absence, and it shall be proved to the satisfaction of such Court or, in the case of a decree of a Dáil Court, to the satisfaction of the Commissioners, that such person had a good defence or answer to the making of such judgement, decree, or order, but refrained from appearing at and opposing the making of such judgement, decree, or order because of an objection on principle to submit to the judisdiction of that Court, such Court or the Commissioners, as the case may be, may, upon such terms or conditions, if any, as shall appear just, allow the proceedings in which such judgement, decree, or order was made or given to be reopened for the purpose of allowing such person to make his defence or answer, and may direct any necessary re-hearing or new trial, and may rescind, vary or amend any such judgment, decree or order, and may give or make any other judgment, decree or order, with the addition of any requisite ancillary or consequential order as the justice of the case shall require
(2) The rights and powers given by the foregoing sub-section in respect of a decree of a Dáil Court are in addition to, and not in substitution for, any right or power given by any other section of this Act."
This new section is proposed to be inserted in order to meet the cases of persons who were sued in the old British Courts, and who, for patriotic reasons, declined to attend or defend the proceedings, judgement being given against them in their absence. It is also intended to apply to persons who were sued in the Dáil Courts, and who refused, for political reasons, to appear in those Courts.
This amendment is, I think, relevant to the subject-matter of the Bill; but, if carried, it will involve a change in the title.
May I ask whether the application for re-hearing is intended to be made ex parte? It would be well to make that clear. I would suggest also that the Minister might agree to the addition of certain words limiting the time within which the provisions of this section may be put in force by any particular applicant, as is done in another section of the Bill. It is obviously undesirable that a matter of this kind should be left open, giving people power to get a re-hearing at any time. I would suggest to insert, after the words “to the satisfaction of the Commissioners,” the words “upon an application made within the prescribed time.” That is the form adopted in another section of the Bill. You limit the time within which a person may apply, and by adding in in the fifth line of the amendment the words I have suggested, you will make certain that people cannot come in two years hence and demand a re-hearing. If it is intended that the application be made ex parte, I would suggest that the words be added: “upon an ex parte application made by them within the prescribed time.” That should be made quite clear. I think the Minister will agree that both as to the question of giving notice to the other side and as to the question of period there is need for some verbal amendment.
Mr. O'HIGGINS
One of the points the Deputy has raised would require some consideration—that is, as to whether the application should be ex parte or on notice given. It would be better to leave the section as it is, and I will undertake to consider both that point and the question of a time limit, which I think is quite proper, between this and the next Reading.
There is another suggestion I desire to make in connection with the new section. The section, as drawn—incidentally I must congratulate the Minister for Amendments on the admirable way he has drawn the amendments—puts a little too much onus upon the applicant, because the applicant has to prove that he has a good defence.
The Dáil will see that the applicant, if he gets leave for a re-hearing, is taking upon himself the risk of having to pay the costs of the whole proceedings. Therefore it should be enough that the applicant should prove on an ex parte application that he probably has a good case. I assume that the other side is not there, and that the case will be thrashed out on the re-hearing eventually. I ask that, on the next stage, the word “probably” be inserted in the section. What I suggest is, that in the fifth line of the amendment it should be made to read: “It shall be proved that such person probably had a good defence.” I think if you make the person prove definitely that he has a good defence, you are asking the Commissioners to prejudge the case before the re-hearing takes place at all.
Mr. O'HIGGINS
The wording in the amendment is: "to prove to the satisfaction of the Court." If it is a mere verbal alteration that the Deputy requires, I will undertake to change that phrase.
What the Minister suggests would go a long way to meet my point, but I would like the word "probably" to be put in so that the Commissioners, have this definite fact before them, that if they think the applicant is probably right, he is entitled to have a re-hearing at his own risk.
Mr. O'HIGGINS
I will consider the bringing in of an amendment on the lines suggested by the Deputy.
That will necessitate an amendment of the Title.
I beg to move an amendment to the Title, in line 14, to add after the word "aforesaid" the words "and relieving certain hardships and anomalies which have arisen in connection with these Courts."