I have a note of that. The question of the costs of the under-sheriff is within the discretion of the courts, and when the court is satisfied that the under-sheriff has acted properly in having resorted to the interpleader, he is allowed his costs incidental to the proceedings as against the unsuccessful claimant, or the execution creditor, as the case may be. If the third-party claimant wins the case, and the court thinks the under-sheriff did right in coming along with his interpleader process, then the court will give him his costs as against the judgment creditor. If, on the other hand, the third-party claim is disposed of, the costs of the under-sheriff are liable to be made part of his expenses, so that Section 21, I would urge, meets the case of thebona fide mistake of the under-sheriff in exercising his powers under Section 13. I would apply the same remarks to the amendment of Senator Linehan and Senator O'Farrell. They would simply change the object aimed at by Section 13. The intention is to guard against seizure by the under-sheriff of goods belonging to a person other than the debtor, where such person has a legal claim to the goods and adduces legal evidence.
That is the object of the amendment, but it leaves the door open to fraudulent claimants. A person can obtain the release of his goods by making a statutory declaration. I am afraid the process will be resorted to, readily and frequently, of making a simple allegation in order to secure anulla bona return by the under-sheriff. Let the statutory declaration be made, but, in addition, let there be the lodgment which will show good faith and reality in the claim. The moment these conditions are applied, Section 21 comes in by way of interpleading, but if you dispense with the lodgment and simply leave it that the moment the particular form is served on the under-sheriff that the under-sheriff will return the goods, then a great many of these formulae will be flying about. The new position will not then be a substantial improvement on the old, and the old position was calculated to bring the law into ridicule. When any member of the family other than the judgment creditor puts forward a claim that those goods were his or hers the bailiff went home, reported to the under-sheriff and the latter returned a writ of nulla bona. Senator Sir John Keane said: “Surely the suggestion is absurd that a son or daughter owns the stock on the land of the householder.” It is absurd just as it is almost equally absurd in the household to suggest that household equipments and fittings are the property of the children rather than of the parents, but those claims were habitually made, and a cautious under-sheriff, recognising that mistake meant personal liability, never proceeded, although in his own mind he would have very little, if any, doubt of the bogus nature of the claim. It was sufficient to deter him. When the result of a bona fide mistake was personal liability, he returned nulla bona, went back and said there was nothing there; that the property belonged to the good man's wife, his wife's sister, or daughter or eldest son, and that everything he saw in the house was not his. The under-sheriff took no risks.
That was the position in the past, and that is the position I am attempting to deal with by Section 13. I see no other way to deal with it than by leaving to the under-sheriff the question of whether or not he will go ahead with his seizure in face of a third-party claim, and we are asking him to go ahead when he is satisfied that the third-party claim is dishonest. By Section 2 the judgment creditor has no right to insist that he shall go ahead and seize the goods of someone other than the judgment debtor. We are prepared to guard against any right accruing to the judgment creditor to have the goods of someone who is not the actual debtor seized. It is a problem that, I think, defies any other solution than the one in the Bill. You have got to leave it to the commonsense and discretion of the disinterested under-sheriff as to whether he will go ahead in a particular case, and then you have your interpleader proceedings to meet admittedly the oddbona fide mistake which may occur. I think it would be extremely rare myself.
These provisions were in operation for three years, and neither by interview nor correspondence nor through a Deputy have I heard of a case of hardship. Senator Linehan says that is because I sent out a mysterious circular. Let us clear that up. The circular was sub-section (2) of Section 13, which was not in previous Bills. It was simply a reminder to the under-sheriffs that there was no duty on them to seize the goods of someone other than the judgment debtor. It was explanatory and told them the object of the Bill was to vest in them a discretion to proceed when they were satisfied that the third-party claim advanced was a bogus claim. That section is inserted in this Bill simply because we believed that it was absolutely necessary for the removal of doubts, and because this is a permanent Bill, where there should be no vagueness about a matter of that kind. The circular issued to the under-sheriff did not prevent the full operation of those provisions. The provisions operated throughout the last three years. They were extremely useful, and in no single incident was a case brought to my notice.