I do not see anything in the new draft District Court rules that could possibly cover this point; it just could not.
The Minister refers to the District Court Rules Committee and says they made certain recommendations. That is no doubt true. Obviously this House must look at any recommendations made by them. I do not want to say a word about that committee. I am sure they are a fine body of men and women. But, if one were to look at who they represent in courts — as between whether they represent creditors or debtors — I would have no hesitation in putting forward the suggestion, if it was looked at — in so far as they represent either at all, that is — that they represent creditors and not debtors. The simple reason is that debtors are not represented in these courts except on a very rare occasion when they are so low down on the finance scale that they find themselves in that court, and the last thing they can afford to do is to find any lawyer to represent them. Therefore, it is the creditors who are represented, the creditors and their legal representatives who are on the District Court Rules Committee. Understandably enough, they seek to streamline the procedure, quicken it up and expedite it. That is a worth-while excercise and I would support it provided the necessary safeguards are there from the debtor's point of view.
That is perhaps where the position of this House may diverge just a bit from the position of the District Court Rules Committee. When you come into a court of law and oral evidence is being given it is rare, if ever, that courts are prepared to accept, or are ever required by statute to accept, crucial and important matters of evidence otherwise than by sworn testimony of one form or another, either by sworn testimony in court or by a sworn statutory declaration. I agree with Deputy Cowen. He is absolutely right about the statutory declaration. While certainly it would be an improvement on the position as is on the certificate, it would present certain practical difficulties to have the thing sworn on an up to date basis. But for the life of me I cannot see why it is necessary to give a concession to a creditor who is coming into court to seek his money, to prove his case the same as any plaintiff does, why it should be necessary for the House to bend over backwards to say that, on a crucial matter of evidence, a creditor should not be required to give his evidence in the normal way by sworn testimony but that he should be given the very rate and unusual privilege of proving a matter simply by a certificate from his book-keeper.
The reason witnesses coming into court are required to take the oath is that they should realise that this is an important and serious matter. Obviously people will not devote the same care and attention to a mere signed certificate as they would to something on which they have to take the oath. That is the whole purpose of the oath. Creditors and their bookkeepers who deal with these things may be inclined to be much more casual, and not as careful to search for credits that a debtor may have made if all they are required to do is give a certificate.
I do not see why they should have that concession. It is not even as though it would place any extra or undue burden on the creditor. He has to be in court. His oral testimony is required anyway. It is not as though one is pulling him out of his office for this purpose. He has got to be there because he has to give the evidence so far as the original order is concerned anyway. Why then can he not deal with the two items of necessary evidence while he is in the witness box, the first being the amount of the original debt and the second as to whether or not he has received any payments from that debtor in the intervening period? Why is he to be excused that normal liability? No doubt it would be a great convenience put forward by the District Court rules Committee but it is not good enough and I have reservations about it.
Very often, in many of these hire purchase companies—and let us face it, the overwhelming bulk of cases involved in these enforcement procedures are hire purchase companies — the way they work is that there are massive small payments, credits, interest to be recorded. It is quite complex for accounts, even in respect of things like television sets and the like. Very often payments are sent in, are mislaid, are not entered and so on. In all of these matters the debtor is at a grave disadvantage vis-á-vis the creditor. He does not have a bookkeeper; he does not have computers. It is a rate debtor who keeps an absolute record of what payment he sent in, when he was charged, and all the rest of it. He relies entirely on the bookkeeping procedures of the creditor and the hire purchase companies. In the overwhelming majority of cases they are honest people; I have no doubt that they are. But there are cases where, with the best will in the world, these things go astray. I have come across cases of it myself.
Why should the creditor be relieved of the obligation to go through his books with that higher degree of care that would warrant somebody taking a sworn statement that that was the correct net amount? Letting them away with simply giving a casual, signed, certificate I fear would give rise to a much more casual situation. It could well be in many cases that, as a result of that, a credit that a debtor would be entitled to may not be given to him and in effect he may end up paying the same amount twice. Even under the existing procedure that happens. The existing procedure — and the Minister can correct me if I am wrong — means that when these examination orders and this hearing comes on I do not think there is anything about a certificate; that is new. The position is that the same creditor or his witness, normally his bookkeeper, proves the amount of the original debt and also gives sworn testimoney to the court of what credits, if any, have been paid by the debtor in the meantime.
What is wrong with that? Why is it necessary to relieve him of the burden of providing that normal sworn testimony and let him away with a privilege? It is a privilege that is not accorded under any other circumstance I can think of. I do not see why this should be singled out for that benefit here. This creditor and debtor position is a very one-sided one. Debtors who appear in that court are in a very low position financially and otherwise; otherwise they would not be there. They do not have the benefit of legal advice and assistance. The ins and outs and practicality of it are that a certificate given by some bookkeeper back in the office will just be handed in and that will be the amount that will go into the instalment order. I must say that does concern me to some extent.