That is a Government amendment, and I think it has been moved already. I should like to know if the Attorney-General has any reasons to advance. The only reason he had the last day was this Message from the Governor-General. Perhaps he has some other argument. Otherwise I have nothing to add.
COURTS OF JUSTICE BILL, 1923. - REPORT STAGE RESUMED.
On the last occasion I only raised that particular matter, and, of course, it would not be possible for me to touch upon it now. I do not know whether in the Committee Stage other considerations—I take it that they were—were placed before the Seanad.
I think my recollection of the principal argument raised by the President was that it was very desirable to keep control each year over the number of these District Justices, because it might arise that a few years' experience would show that thirty-three were not necessary, and might be reduced.
That was the argument presented to the Dáil, that it was desirable, at any rate for one or two years, to keep the question of the number of District Justices one which might be raised on the Estimates until the Government have had an opportunity of seeing how many would in fact ultimately be required. When that had been arranged, and when the number had become fixed, then I take it the Government would itself advance the proposition that their salaries should be charged on the Fund in order that there might be no question of debating the exercise of their functions. That is the sole matter in question. Apart from this other matter, upon which I do not touch now, the only question was whether it would not be advisable to leave it as it is for a few years until we see how the thing was working and discuss the number provided. Afterwards, when the number was determined, the question of charging their salaries would be again a matter which the Government would probably entertain.
Do you think that object could be achieved in the form of the amendment put in by the Seanad, which would say that up to and ending, we would say, 1926, the salaries for District Justices should be annually voted, and that from that date they should become charged on the Central Fund? Do you think that would meet the point, or would it be a proper amendment?
I do not want to touch upon the other matter, which is not really even a Government matter, that was raised on the Report Stage, and which I have been listening to from outside the Seanad. It is a matter for the whole Dáil——
I am not going into that at all.
To this extent, if the Seanad make an amendment that would annually provide for the salary only up to the year 1926, leaving provision to be made afterwards by new statute or otherwise——
That would be letting the matter pass out of our hands. What I had in mind was an amendment providing that up to 1926 or 1927 the salaries should be provided by an annual vote on the part of the Oireachtas, and that on and after that date they should be provided by a charge on the Central Fund. Whether that would meet the view and the wishes of the Government, I do not know. I am anxious that this Bill should be a working success and that there should be no friction over any part of it.
I hesitate to express an opinion on it, because I might be regarded in the Dáil——
As giving away a principle. I would not ask you to do that.
Payment out of moneys provided by the Oireachtas raises it on the annual Vote.
It is very curious why you should have departed from the form. I have said all I have to say on that. It seems to me that as long as you use that form you are always in danger until it becomes the established practice. The Constitution says that the money is to be provided by the Oireachtas, and whether you provide it as a Vote or as a charge it must still be provided by the Oireachtas.
Perhaps the less I say on this now the better. I merely want to explain that this was intended as a provisional arrangement. It did not mean that the Government was taking judicial Acts entirely out of the realm of discussion.
In Section 66 the only provision is that the number of such Justices shall not at any time exceed thirty-three. There would not be any difficulty in paying salaries from the Central Fund.
There is another issue raised now, and it might be as well that I should leave it so.
As between the two amendments that appear on the Order Paper in order that we might meet the suggestion that was made that a prisoner should have an opportunity of being asked whether he submitted or not, I have here a form of words which I think would meet the situation. I have shown it to Senator Brown. It is: "To insert after the word ‘summarily' in line 4 the words ‘and the accused (inquiry having been made of him by the Judge) does not object to being so tried.'"
Are you satisfied with this new amendment, Senator Jameson?
Yes, I am quite satisfied.
The next amendment stands in the name of Senator Brown. It is as follows:—
Section 89. Immediately after this Section to insert a new Section 90 as follows:—
"90.—Nothing in this Act or in any rules to be made by virtue thereof shall affect the mode of giving evidence by the oral examination of witnesses in trial by jury, or the rules of evidence."
That amendment stood over in order that I might consider and discuss it with Senator Brown. I have explained to him the difficulty I have in the matter, and it is largely due to this, namely, that we are anxious to enable certain methods of proof of documents to be provided. The mercantile community and the Chambers of Commerce say that there are now under the rules in England methods by which facilities are given for proving documents in cases involving contracts, bills of lading, and documents such as those from consignors and consignees, and we want to be able to make provision for such proofs of documents. We do not intend to make any alteration in substantive law, but we are afraid that this amendment might be taken to interfere with the rules on the subject. Senator Brown agrees that this amendment does not affect anything substantial, and might interfere with the provisions which I think we are all agreed should be made.
I quite agree that there is a reasonable objection to my amendment if it were carried in the form in which it appears. I agree with the Attorney-General that in jury cases it is a matter of importance to be able to prove various documents, as you can under the present law, without great expense and without the production of witnesses perhaps from great distances. If the Bill provides that evidence of that kind can be given without great expense and without summoning witnesses, there would be no great objection to it. Under the circumstances I am quite satisfied to withdraw my amendment.
The next amendment reads:—
Section 94. Immediately after Section 94 to insert a new Section as follows:—
95.—Whenever under this Act an appeal is required to be grounded or heard on the report of an official stenographer, such report shall not be accepted by the appellate tribunal unless it is certified by the judge of the Court of first instance to be a true and correct report of the matter which it purports to report.
The new form of words which I now submit is as follows:—
Section 94. Immediately after Section 94 to insert a new Section as follows:—
"95.—Whenever under this Act an appeal is required to be grounded or heard on the report of an official stenographer, such report shall include both the original shorthand notes and the transcript thereof, and shall be certified by the Judge of the Court of first instance to be such report."
That will not strain his conscience as he merely identifies the document.
The amendment on the paper reads:—
Section 96. To delete all from the words "the age of" in line 11 to the end of the Section and to substitute therefor the words "such age of retirement shall in his case be deemed to be extended by five years. Where any person who is at the passing of this Act a Judge of the Supreme Court of Judicature in Ireland, a Recorder, County Court Judge, Divisional Justice of the Police District of Dublin Metropolis, or District Justice, is appointed to be a Judge or Justice under this Act any age of retirement prescribed by this Act may in his case be extended by the Executive Council, after consultation with the Chief Justice and the Attorney-General by any period not exceeding five years."
This deals with the question of fixing the age of retirement, and it stood over after the debate of the last day in order that we might reconsider the terms. It will be remembered that the Government proposed that in the case of judges, reappointed under the new scheme, who do not reach the age fixed as the limit for retirement under this Act, they should have power to extend the age limit, and that in the case of those who reach the limit the age should be automatically extended. The Government put it to the House that they did not want to insist upon the right or the power to extend, and, the opinion here being against it, the amendment has been redrawn. The proposal now in substance is, that there are a series of retiring ages prescribed in the Bill. If any existing judge is reappointed, first, if he is a man under the age, he will go out at the fixed age named in the Bill, and if he has reached the retiring age it is to be automatically extended for three years. The amendment now reads:—
Section 96. To delete the Section and insert in lieu thereof the following new Section:—
96.—Where any person who is at the passing of this Act a Judge of the Supreme Court of Judicature in Ireland, a Recorder, County Court Judge or District Justice in Saorstát Eireann, or a Divisional Justice of the Police District of Dublin Metropolis, is appointed to be a Judge of any Court under this Act after he has attained the age of retirement prescribed by this Act for the judges of such Court, such age of retirement shall in his case be extended by the addition of three years thereto.
The amendment is introduced in deference to the views expressed here.
The next amendment is:—
In Section 97. To delete the Section and to insert in lieu thereof a new Section as follows:—
97.—No rules of Court made under this Act shall come into operation unless and until they have been laid before each House of the Oireachtas and have been approved by resolution of each such House.
This is to be known as Senator Brown's amendment. It stood over in order that I might see him and ask him to father it, and he is satisfied that under the Interpretation Act the words "no rules" mean no rule or rules, and he is satisfied with it as it stands.
There was a matter that stood over of some importance, that is with regard to the question of estoppel. At present your clause will not work. It is a question of title being raised before a District Justice. It is in Section 74. My difficulty is this. Take the case you put. It is an action for assault, and the defendant says, "The man was trespassing on my right of way." The District Justice says, apart altogether from the question of title, he has no right to beat him. That apparently would be an estoppel, either in a suit for a declaration of title or an ejectment. Why should it be estoppel where the individual is asserting his right of way again or defending it in some form of action?
I am told that some of those right of way cases burden people with small holdings. The Donegal Deputies were vociferous on this point, however, and this was a cheap method of trying out a case of assault before a District Justice.
The real question was whether the man was assaulted and should not have been assaulted. If the clause stands as it is the defendant in that case could never again on another process for assault, or where he himself was plaintiff in a right of way, set up his title.
If the assaults were repeated his remedy would be to go before the Circuit Judge on title.
I think what the Attorney-General is at is this. He wants to give jurisdiction to the District Justice to decide the question of title in some of those small cases. If you alter the wording of it to "in such cases the position of the judges on such a question of title shall not operate as an estoppel," it might do.
Would you not say, estoppel of any kind in any proceedings in which the same title is involved? Why should it be confined to a suit of the declaration of title or ejectment? Supposing an owner of land wanted to bring an action by asserting there was a right of way, why should he be estopped?
Then you get rid of the whole object of the Attorney-General's Section, which is to give jurisdiction in small questions of title to the District Justice.
The District Court is a Court of Record. So far as there is a decision on the title there would be an estoppel as this stands, but the repeated beatings would lead to repeated processes for damages.
It is a difficult question, and it is almost better to leave it out.
There has been a strong demand for it along the West Coast and in Donegal, so that it should be possible, without going through the formality of a process suit, to get their title.
I do not think an Act of Parliament would prevent Donegal and Kerry people from litigating.
My real difficulty is, I think it would be a curious result if the decision of the District Justice were to prevent a defendant from either litigating on the question of his rights to have no passage over his land except by a declaration of title or an ejectment. If it is going to be final let it be final for all purposes. If it is not to be an estoppel why should it be an estoppel as regards everything except two forms of litigation?
It is being put up to me in this way. It might be tried out before a small number of witnesses as an assault case, but when it is tried on process it is a matter of throwing witnesses on each side of varying longevity, and the idea is if they could have a cheap method without an excessive number of witnesses in a district court a District Justice should be given an opportunity of disposing of it notwithstanding the question of title.
Would it not be better to give him jurisdiction in questions of title where the land does not exceed £10 valuation and give an appeal?
If we do that we will then throw on the District Justice jurisdiction to hear title processes in which the witnesses will be massed, and it will be impossible for the District Justice to do any other business. I have interviewed a number of District Justices on this subject, and they were afraid of its being so framed that it would induce litigants to treat it as one of those title processes in which you would have a great number of witnesses and the case would last several days.
You see, there are two points of view to look at in this. You have got to look at the point of view of the man who is claiming the right of way and the unfortunate man over whose lands he is claiming it, because it may be a very disastrous thing for a small farmer with a valuation less than £10 to have a right of way established over his land, and it is no wonder it is a thing he resists to the death. On one side they are anxious to get a right of way, and the man on the other side is equally anxious to resist it, because there was not a right of way, and if you are going to let the District Justice decide this, and decide it for all time, it seems a very strong thing to say that it is worked practically as an estoppel, wherever a right of way is involved, and if it is worked as an estoppel, he goes to the Court of Chancery and asks for a declaration.
He could go to the Circuit Court.
It says any Court. He might come up to the Court of Chancery in Dublin.
Of course he could do that at a certain period.
I can quite understand the desirability of the Justice trying a small case of assault without having his jurisdiction ousted because a question of title is raised. Provided the decision is not to be an estoppel to the title—would not that meet the whole case?
Well, that is the intention, of course.
I think that is the way it ought to be done.
It is not intended to do more than that. The District Justice should be allowed to try an assault case, and his decision, which, of course, will be on record, will not be an estoppel on the title question.
I think you will require to make it more plain. Would it do to put it this way? "Provided also that the jurisdiction of the Justice in cases of assault or trespass shall not be ousted?"
That was the idea. It was intended to include trespass.
"That in such case the decision of the Justice shall not operate as an estoppel on the question of title." Would not that do?
Yes, keeping the limit of course, £10.
Yes. Are you satisfied to have the words "for a declaration of title or ejectment," left out?
Yes, putting in the others.