This section is a new section. It provides for the release by the court of a debtor who is imprisoned under section 6 of the Enforcement of Court Orders Act, 1940 and subsequently becomes bankrupt. A debtor may be imprisoned under section 6 of that Act if he fails to obey a court order directing him to pay a debt either in one payment or by instalments. The committee recommended the inclusion of this section because a debtor who is deprived of all his property on his adjudication is precluded from making any payment to creditors except through the Official Assignee.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
Could the Minister clarify the position of the person, for example, who has been committed in the High Court for contempt of court for non-payment of sums of money that he is liable to pay in certain circumstances, for example, under the Enforcement of Court Orders Act, a maintenance debtor in the family law area can be imprisoned for non-payment of a maintenance order. A maintenance debtor against whom a maintenance order was made by the High Court can be committed for contempt of court for non-payment of a maintenance order. A maintenance debtor in those circumstances should be in a similar position as someone under the Enforcement of Court Orders Act here. Is that dealt with at all?
We did not consider it from the point of view of the particular case the Deputy mentions. I would not anticipate any great difficulty because it is the one High Court and in this case the rationale of the committee was that if a bankrupt was in prison by virtue of this provision in the Enforcement of Court Orders Act in respect of a debt before adjudication he should be released. It seems logical that a bankruptcy should be carried out outside prison. It says the court may order his release. With regard to Deputy Shatter's question I can only endeavour to answer it on an analogy which is not connected with matrimonial law at all. Sometimes there might be a clash between the High Court exercising Bankruptcy jurisdiction and the High Court on the Admiralty side. In the High Court in Bankruptcy, for example, with regard to the seizure of a ship, on adjudication of the owner of the ship, the ship passes to the Official Assignee. But the High Court in Admiralty may already be seized of that property by virtue of a maritime lien. In those sorts of situations the bankruptcy court could take over the Admirality aspect of the problem giving the maritime lien its particular preference in the distribution of the estate. Maybe the analogy is a bit far-fetched but the High Court in Bankruptcy in this case would have ample jurisdiction to decide what was the appropriate action to take with regard to the debtor who was in prison on foot of its own order with regard to maintenance, instalments and the like.
In that context the example the Minister gave is perfectly correct but that is because the High Court here has a duality of jurisdiction. For this to apply here — again it is the High Court and there is a duality of jurisdiction — the parties are different or they may be different or, the wife may have an interest in the bankruptcy and for it to work properly within this legislation there would need to be a specific amendment dealing with someone who has been imprisoned by the High Court for non-payment of moneys due pursuant to another court order outside the bankruptcy prior to the date of bankruptcy. For another reason also — the example I gave was a High Court example — you could have the same situation arising out of the Circuit Court in that area of law. I see this happening in practice. It is not an academic suggestion at all. I have seen cases at first hand where you might have a maintenance debtor in the Circuit Court not paying a maintenance order which could result in a Circuit Court committal for contempt. The Circuit Court has a function here under family law. There is an act of bankruptcy brought in the High Court. There will have to be some means of dealing with that particuluar problem.
Are you saying that there should be an amendment made at this Stage?
The Minister and his technical advisers would have more expertise in this than I would have. I am signposting. I agree with the provision of section 26. I am looking at similar situations that can arise in both the Circuit Court and the High Court because the Court Orders Act, 1940 especially simply applies to the District Court. Perhaps the Minister would consider an amendment for Report Stage to deal with this type of issue or alternatively consider looking at one for next week if we can leave this matter over to next week.
There is just one point which Deputy Shatter's question has raised, that is that it might be in the interests of the other spouse, for the bankrupt to be released for the reason that this comes into operation after the adjudication.
This is expressly providing for him to be released if he has been put in prison through the District Court but we do not have a similar express provision if he has been imprisoned through the Circuit Court or the High Court. That is my problem. I am not suggesting that he should be kept in prison ad infinitum.
I will have that examined. We will come back for further comment on it and I will bring forward an amendment if I think it is necessary.
On Report Stage.
That is right.
Question put and agreed to.
We will adjourn and resume on section 27. For those members who were not here at the beginning, it was agreed that we would not meet next week but that we would have a full day session next time. Members will agree that with another 110 or so sections to go we could be here for a long time. The agreement was that we would meet on Friday, 29 March. The meeting time will be 9.30. We would attempt to break the back of the Bill on that day. Given the past rate of progress, we should get through about 40 sections on that day depending on Senator O'Leary. Is it agreed to have all amendments in by 22 March for that meeting?
Agreed.
The sub-committee adjourned at 4 p.m. until 9.30 a.m. on Friday, 29 March 1985.