At the close of the last meeting Deputy Taylor raised two questions which I think I should deal with first. He asked should not the court have a discretion to adjourn the petition for adjudication to allow the debtor an opportunity to pay. He disliked the word "shall" in the mandatory sense in which it is used in the section. He also asked that if there existed grounds other than those listed as the requirements of section 11 (1) why would the court not have power to adjourn. The answer to both the questions is to be found in the fact that the adjudication by the judge is merely a judicial affirmation of what has already been proved. The Bankruptcy Committee in their report described the process by which adjudication of a debtor on a creditor's petition is reached; the documents necessary for such an adjudication are listed on pages 410 and 411 of the report. At the time the committee reported, provided all the documents were in order, the Examiner signed the order of adjudication as well as a duplicate order of adjudication and a warrant of seizure which authorised the messenger to seize the bankrupt's goods. This was in accordance with the Bankruptcy Acts, especially the bankruptcy rules which empowered the judge to delegate certain of his functions to the Examiner including the power to adjudicate debtors in certain cases. Such an order made under a delegated power was equivalent to an order of the court. However, it could be reviewed, varied or rescinded by the court if appealed against. The power to adjudicate was regarded in the nature of an administrative function. However, for well over a decade it has been deemed a judicial function and accordingly the documents are now checked in the Examiner's office and if found to be correct and complete are brought to the judge, who makes the order for adjudication.
As the committee pointed out in its report on page 54, a petition is an ex parteapplication to the court without notice to the debtor which either can be granted, refused or renewed. If it is granted, the court so orders. If it is refused, the applicant, in this case, the petitioner, can appeal. If the petition or any of the documents are not in order they are returned to the solicitor acting in the matter. Since the petition is ex parte, it can be represented when it and or the equivalent documents are in order.
The question of adjournment at this stage of the proceedings would not arise. In a very rare case it is possible that the examiner on presenting the papers to the judge might draw attention to some problem or anomaly. In that case the judge could adjourn the petition so that the petitioner could clear up the point. As for the court adjourning the application on grounds other than non-fulfilment of the requirements in section 11 (1), it is theoretically possible that a debtor could prove to be not amenable to the bankruptcy laws by reason, for example, of his being a minor or being mentally incapacitated. In these cases, however, assuming they had proceeded to this stage, the checking and necessary inquiries should have taken place in the Examiner's office before the papers were referred to the judge for adjudication. The bankruptcy process as set down in the Bill envisages that if the court refuses to adjudicate, the petitioner can appeal, while where it does adjudicate the bankrupt/debtor is given time to show cause why the adjudication should not stand. The alteration of the word "shall" to "may" would make little difference, as the word "may" is frequently interpreted as "shall" in statutory interpretation.
This information relates to the points requested by Deputy Taylor on the last occasion we were here.