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Seanad Éireann debate -
Tuesday, 11 Mar 1947

Vol. 33 No. 11

Auctioneers and House Agents Bill, 1946—Committee (Resumed).

Debate resumed on amendment No. 7.

The difficulty in regard to this amendment seems to hinge on two points—whether there should not be some kind of classification and the deposits fixed in accordance with it and whether it is within the ability of applicants to get cover from the insurance offices. The Minister has expressed his doubt as to his ability to secure anything in the way of a suitable classification, and I think he is right in that. I tried to think out some kind of an ordered classification which might follow on these lines: metropolitan offices; urban offices, divided into people entitled to deal in lands and houses, others only in houses and others in lands; rural auctioneers, entitled to deal in lands and houses in the rural area and others entitled to deal in lands only. Then, to cater for that class about which Senator O'Dea and others were uneasy, the very small man, there might be a classification in which men could deal only in grass lettings, meadow lettings and conacre generally. I am sure no one in the House would agree that that is a reasonable suggestion which would prove to be workable, so I think we must reject it. It follows, then, that it is likely there will be some casualties. If there must be casualties, that is that, but we have to keep in mind the public good.

Regarding the fidelity bond, I do not think there would be any difficulty in getting it. My name is handed in very often to insurance companies by applicants as a reference for bonds or fidelity cover and I do not know of any case yet where anybody has been refused, though many of the applicants who have used my name as a reference, to my own knowledge would not have a sixpence in the bank. Yet they have had no difficulty in getting their bonds. It could be that insurance companies might use their power to keep certain people out of this profession by refusing to provide them with the necessary cover, but it ought to be possible to get after that. As a matter of fact, it seems to me that the time has come when some inquiry must be made into the whole question of agency in general, as well as in regard to certain matters dealt with by insurance companies. It seems to me that if men find they have a grievance, that applicants for this cover are not being fairly treated, it ought to be possible to have their cases examined, and of the companies refusing cover being made to answer.

I make this suggestion with regard to this difficulty, that perhaps the auctioneers' organisation itself might undertake the underwriting of these bonds. It is a very big, widespread organisation, and it seems to me that there is no reason why it should not be in a position to provide the necessary cover where it is satisfied that the applicants are fit and proper persons for admission to the organisation. We are all agreed with Senator O'Dea and with the other Senators who have spoken that, if we can avoid inflicting hardship upon anybody, it should be done. I am sure the Minister agrees with Senator O'Dea on that, and that we are all in agreement with him on it. The difficulty is to find a formula that would be satisfactory. No formula has been suggested, and, perhaps, while not asking the Minister to commit himself, he might between this and the next stage see whether he and his advisers might not be able to find some formula on the lines of classification that might meet the wishes of the House.

There is one point with regard to the amendment which has not yet been adverted to. This is a deposit not merely for an auctioneer but also a deposit for a house agent. There are in cities just as many very small house agents carrying on a very small business as there are small men in the country carrying on a small auctioneering business. I agree with Senator Ua Buachalla to this extent, that the borough classification would not be sufficient. I think, however, that the Minister should consider house agency classification as distinct from the auctioneers' classification. No house agent carries on a very large business, as such, unless he also carries on an auctioneering business. In that case he is covered under the auctioneering section. I think the Minister might perhaps agree to give the small house agent a better chance. He would not be holding the same deposits as an auctioneer, and in any event there would not be the same case for putting him on the same flat rate of deposit.

Is the amendment being withdrawn?

I should like to bring it forward on Report Stage again.

It can be withdrawn now and brought forward again on Report.

Very well.

Amendment, by leave, withdrawn.
Question proposed: "That Section 14 stand part of the Bill."

On the section, in the debate on the last amendment a question was raised with regard to the insurance bond and its probable cost. The Minister said that he had reason to believe it would not cost more than £50.

He said £15.

I have been approached by certain insurance companies in regard to their obligations on the question of safe custody. The phrase "safe custody" is of vague and indeterminate application. Some insurance interests feel that they would like to know more specifically what are their obligations in regard to "safe custody". They know their obligations as regards defalcations, but "safe custody" might involve them in matters relating to night watchmen, adequate safes on premises and so on. They would also like to have from the Minister some indication of the form that he intends to adopt with regard to these bonds. I think that until these things are known, and until the position is made quite clear, it is rather doubtful whether the insurance companies will be able to give bonds at the rather small rate suggested by the Minister. Can the Minister give the House any general indication as to how insurance companies would be disposed to give bonds that would stand under this rather indeterminate obligation for "safe custody"?

All that I can say is that at the present time an auctioneer is bound to see to the safe custody of any article that is given into his care. If, through negligence, he lets it out of his possession, or if it is stolen while in his custody, then he is liable to the person whose property it is. It is to insure a person against that misuse of his property that we are bringing safe custody within the provisions in the Bill, so that it will be covered by the deposit. At the present time if an auctioneer who has property in safe custody allows it to be stolen or steals it himself or neglects it, the owner can bring him to court and get damages. Under this Bill, the deposit will be liable for the damages awarded. If the court thought he should pay more than the deposit money it was a matter for the court itself. I think that the insurance companies, some of them at any rate, understand this and accept it as a common risk. Some of them are prepared to accept it. That is the information I have.

I take it that those of us who are covered as receivers in the High Court or Bankruptcy Court and who have our bonds there for many years will not have our rights disturbed and that the same bonds will be held valid in future. I am sure the Minister does not anticipate having to disturb these bonds which have stood the test of time. Personally I can see nothing in this Bill that will interfere with those. I never had any difficulty and I do not foresee any difficulties now except something very unusual is being looked for.

It is quite obvious that Senator Sir John Keane is worrying about the insurance companies. Anyone who knows the insurance companies knows that they are quite capable of looking after themselves. As a matter of information insurance companies have already been approached. I am not prepared to say which companies because I might appear to Senator Sweetman to have a preference for one particular company. The matter is well in hand and personally I would like to have some shares in any insurance company that will take over this business. It is gilt-edged. Any auctioneer of any importance or with any common sense is already well covered in case anything would go wrong with his business.

It is not "the auctioneer of any importance" that we are worrying about. It is the small country auctioneer.

Senator Sweetman is just worrying about one auctioneer and an interesting thing about it is that Senator Sweetman condescends to do business with the one auctioneer he thinks is wrong.

Senator Sweetman is a free agent who is entitled to do business in any manner he likes or with any auctioneer and Senator Sweetman wants nothing from this particular auctioneer or from any other one.

Again, as a matter of information——

I am sorry.

Question put and agreed to.
SECTION 15.
Question proposed: "That Section 15 stand part of the Bill."

The matter raised by Senator Sir John Keane under Section 14 really comes more appropriately under Section 15. I understood that the purpose of the deposit in this case was to protect the public in respect of money received by an auctioneer. Now I gather from the Minister that he visualises not merely protecting the public in respect of moneys received by an auctioneer but in respect of a wider field, that is to say, negligence. If an auctioneer, for example, has an article of furniture for sale and it is broken inadvertently, is not this going to mean that the premium on the bond will be higher than a mere premium against dishonesty? As I understood it, the Minister's anxiety is to prevent dishonesty. Now it looks as if we are going into a wider field and considering compulsory insurance for auctioneers against accident. I wonder is this fair to the small man.

I did not say accident.

I think as this section is phrased it would cover accident—

"in respect of any liability incurred by a defendant in the course of or in relation to the business of auctioneer or house agent."

If the auctioneer's assistant drops a china vase in the course of an auction it is an accident and an action probably lies against the auctioneer because he did not provide that this man should be sufficiently careful. In this section the Minister is forcing an auctioneer to insure against accident. This would be a liability in the course of his business and a liability for which the Minister is making the deposit liable. I hear Senator Quirke saying that every auctioneer is covered against that. Every big auctioneer is covered but I do not want this Bill to be considered from the point of view of the big auctioneer only. The small country auctioneer is not covered and if we are going to make him insure against it let us do it with our eyes open.

Senator Sweetman's ignorance of business is only surpassed by his political ignorance. Everyone must know ordinary business——

I know much about the Department of Defence contracts.

If the Senator knows anything at all he knows that certain auctioneers get auctions for which they are considered most suitable and that other auctions are given to other firms who are considered more suitable. Senator Sweetman says there is jealousy amongst auctioneers. There may be jealousy amongst politicians, but there is no jealousy amongst auctioneers. If I were sick in the morning I could give the names of 50 auctioneers in Dublin who would take on an auction for me without any reward. Senator Sweetman wants to suggest that there is terrible jealousy amongst auctioneers because he saw Stokes and Quirke's calendar in the Department of Industry and Commerce, the Department he happened to go to when he probably wanted to pull some "wangles" on behalf of his friends.

I could not hold a candle to the Senator at that game.

If he goes to any other Department of State he will find there calendars from various other businesses—the National Insurance Company, New Ireland Insurance Company, Wood Printing Works. The Senator has a bee in his bonnet about this matter.

All this is beside the question before the House.

I was about to ask whether this interchange of compliments had anything to do with the matter we are discussing.

They have nothing whatever to do with it and they are out of order.

The Senator was very quiet last week. He could have taken the matter up then, when he was asked if he wanted it rough or smooth.

The Senator had already spoken—and Senator Sweetman knew it better than anybody else —and could not speak again.

I think that the furniture of a small person down the country is as much entitled to protection as that of a big person in the city. It is the public we are trying to protect, and an auctioneer down the country should not be allowed to throw a person's furniture around anyway he likes. I think an auctioneer is liable at present, if he does not take proper care, and it is to ensure against that sort of thing that this provision is inserted. I do not want the Seanad to do anything with its eyes shut and I welcome the most minute examination of any of these Bills. I should not like the implication to be put forward that I was making any such attempt. It is there in black and white. Senator Sir John Keane raised the matter and I have explained it so far as I can. I believe from what I am told that, with a full knowledge of what is implied in all this insurance certain well-established insurance companies are nevertheless prepared to insure auctioneers at a very moderate rate. That remains to be seen, but I am told that that is the position.

It appears to me that a difficulty may arise in connection with this section. Senator Sweetman referred to the kind of action which might arise where injury was sustained by a member of the public in connection with an auctioneer's business. Suppose an auctioneer in relation to his business is involved in a running down case. A decree for £2,000 may be given against him, and it seems to me that in that case the person holding the decree could go to the High Court and claim the discharge of the decree for £2,000. If that were so and the auctioneer held moneys, £2,000 or £3,000, being the amount of deposits placed with him, the security is gone. That is the real difficulty. If the bond which is intended to protect the person whose money is held by the auctioneer can be used to compel an insurance company to pay a different kind of claim, then the person whose money lies with the auctioneer is deprived of protection. The Minister will say that in that case the bond lapses and the licence is cancelled, but, before the licence is cancelled, a substantial sum may lie with the auctioneer and there is no further protection.

Hitherto, I take it, auctioneers have been liable under a number of counts—dishonesty, negligence, or perhaps failure to insure against fire. Cases have gone to court and they have had to pay or have been absolved. Is it now to be that any decree given against an auctioneer for neglect in the course of his business will automatically fall on the insurance bond or on the cash deposit?

It does not in every case, unless notice has been served on the insurance company before the hearing. If it is a case of a guarantee and no notice has been given to the insurance company, they are not bound to pay.

Surely, if it is in the nature of a guarantee bond, the primary liability is on the person who has been decreed and only on his failure to pay can the insurance company be called upon?

That is not the point.

Senator Duffy suggests that if an auctioneer ran somebody down with his car, the deposit or portion of it would be claimed. Of course, it could not, because the auctioneer is already covered. He cannot, go on the road unless his car is insured, and, if he has an accident, the insurance company is liable.

That is true, but I merely instanced a case in which decree is given in respect of a particular claim. It could occur in other cases. An auctioneer might have a horse and dray, or it might be that he was carrying on business in a premises in which a person attending the sale is injured or killed by reason of a plank or a brick falling. The point that I am trying to make is that if the claim is made, not by the person whose deposit is held by the auctioneer, but by an outsider, and the auctioneer is unable or fails to pay, the insurance company can then be called upon, on foot of its bond, to pay the amount of the decree, taking away entirely the sum of £2,000 which is designed to protect the people whose moneys are in the custody of the auctioneer.

Mr. Hawkins

If I understand the position which Senator Duffy is trying to clarify, it is that the whole basis of the Bill is not to protect the auctioneer but to protect the people.

The people whose money is held by the auctioneer.

Mr. Hawkins

To protect the people whose business is entrusted to the auctioneer, and common sense will then relate that to deposit. If there is to be a closure or demand upon the deposit, it must be and can only be made on behalf of the people whose money and business have been entrusted to the auctioneer. Whatever about the legal interpretation, that would be the common-sense interpretation.

There is a point in what Senator Duffy says, but I point out that it must arise out of a liability incurred in the course of, or in relation to, his business as an auctioneer. There is this about it, that in the case of the example he quoted, of an auctioneer holding an auction at which a member of the public is injured and the auctioneer being liable because he had no insurance cover, it is quite possible that a decree given to that member of the public against the auctioneer would be enforced against the deposit of £2,000, and, I think, quite rightly.

If a printer has a bill against an auctioneer for auction advertisements, clearly he has a right to claim against the deposit.

I think it would be a matter for the court to decide whether or not it is a matter which happened in connection with his business as auctioneer. If my dog bit Senator Sweetman—I would not be sorry—the judge would decide whether it was, in connection with my business as auctioneer. He would not know the kind of fellow Senator Sweetman is.

All I want to get clarified is that if this Bill is designed to protect the public in respect of their financial relations with auctioneers, it should stop there. Section 15 does not stop there. It gives the right to any citizen, whether he has business with an auctioneer or not, whether he has given auctioneering business to the auctioneer or not, to go into court and have payment made to him in respect of a decree against the auctioneer in relation to auctioneering business, such as advertisements.

Suppose I go into Senator Quirke's auction——

It would be much more suitable if Senator Sweetman dealt with doctors.

We will go into the doctors as well. Suppose I go into the auction and I sit down on a chair and the chair collapses and I injure myself. I have got a right against the auctioneer and that is a right in law. It is not the type of right for which this deposit is intended to be provided. It is intended to be provided for dishonesty and the deposit should be kept to be available for dishonesty and should not be available for a type of right such as if I break my arm in the chair in which I sit and on which there are only three legs instead of four. And even to use the Senator's own subject if the auctioneer happens to have a dog which runs out from under his desk and bites me——

This may need clarifying because further up about line 36 or 37 you will see——

"incurred by him as a licensed auctioneer or licensed house agent in relation to the receipt and payment of money and the safe custody of property."

We may have to change the wording there and make it more explicit.

And that will settle the whole thing.

On the other point about the safe custody, if a person got a valuable picture and the auctioneer makes way with that it would be the same thing as running away with money and that is why this thing is necessary. Goods are the same as money in this case and they must be responsible for them.

Before we proceed on that I would like to know is the insurance company liable—it appears they are not liable unless notice of the proceedings have been served. I am referring to lines 5 and 6 on page 8.

They would not be liable.

The question is if notice has not been served the insurance company need not pay out of the guarantee.

Of course notice should be served to give the people an opportunity of defending themselves. It is just the same as motor car insurance.

In that case it is the defence serves the notice. Here it would look as if the obligation is placed on the plaintiff, because if the plaintiff does not give notice to the insurance company—he must, first of all, find out the insurance company— and if the defence does not get notice there is no obligation on the insurance company to pay under the guarantee.

They can find out the insurance company on the register of the courts of justice.

I think reference is made in the Trade Union Act to this point. Trade unions must deposit certain amounts of money in order to obtain negotiating licences. That is intact against any claim whatever other than an abuse committed by the trade union under the Act. I think if the Minister would refer to the Trade Union Act and see where a deposit there is immune it would serve the purpose in this case. I think the confusion could be cleared away without any trouble. A deposit laid down by a trade union is immune from any other claim—and trade unions can have claims—but the deposit is immune and cannot be used for any other purpose than a fine imposed by court of law.

I submit that is completely wrong. The deposit held by the court is liable for a trade union's debts or for any other action taken by a trade union. I am anxious that the bond should be valid only for the purpose of ensuring that where the auctioneer holds money belonging to a customer that money will be repaid up to a limit of £2,000—goods or money the property of his customers and not for other debts.

I will look into this. I would like to get it cleared up but naturally the notice must be served.

It may have to be served by the defendant but not by the plaintiff.

I do not see that there would be any difficulty involved for the plaintiff. If he gets his solicitor to look at the register that is kept in the court he will know the insurance company that holds the bond. Surely a person who is looking for damages ought to be required to serve notice and surely not the person against whom the claim is made. There could not be any difficulty. The register is kept in court.

I agree with the Minister that the person making the claim should be the person to give notice but is there provision here by which such a person can inspect the register? The person who is going to make a claim may go to the accountant-general in the courts of justice. Is the accountant-general bound to tell him who the insurer is?

Yes. If you look at page 9, sub-section (3).

Yes. The Minister is quite right. That covers it completely.

Question put and agreed to.
Sections 16, 17 and 18 agreed to.
SECTION 19.
Question proposed: "That Section 19 stand part of the Bill."

I want to draw attention to the last line of sub-section (2). This sub-section provides for penalties where an auctioneer fails to produce his licence to an officer of customs and excise. Let us remember that, in this case, the auctioneer has a licence. If he had no licence and proposed to carry out an auction, he would be guilty of an offence under another section. This is a case in which the person concerned is entitled to carry on an auction. He has a licence but he has forgotten to bring it with him. He is asked by an officer of customs and excise to produce his licence and, within a limited time, he must do so. If he fails to do so, he is liable to conviction and a fine of £50. I am not complaining about any provision of the section except the amount of the fine, which, I think, is out of all proportion to the offence. In my opinion, a £10 fine would be quite ample. We ought not to write into Acts of this kind what seem to be preposterously heavy fines. My suggestion is that the Minister should alter that figure to £10.

This provision was brought in as the result of an amendment in the other House. Originally, in this sub-section, we had the same provision as was in the Act of 1845, which is now being repealed. Under the original provision, any officer of the Garda Síochána could arrest without warrant any person conducting an auction who, when requested by such officer, failed to produce his licence. In lieu thereof, there was a provision relating to an immediate deposit of £10. It was as the result of an amendment in the Dáil that seven days were allowed to the person concerned to produce his licence, and, failing to do so, the penalty was fixed as set out in the Bill. I think that there is a case for that. The amendment was not mine but I accepted it and there seemed to be general agreement about it. The person concerned gets seven days in which to produce his licence.

Senator Duffy is not correct in his reading of the section, according to what the Minister says. This is a penalty for conducting an auction without a licence——

Yes. If he does not produce the licence within seven days, it means that he has not got a licence.

And he may still satisfy the court that he was an authorised auctioneer and could not produce the licence owing to circumstances beyond his control. This is really a penalty for conducting an auction without a licence.

I do not accept that. However, I shall put down an amendment for the next stage.

According to the section, the licence must be produced to-an officer of customs and excise—presumably, at the place at which the auction takes place. An auctioneer from Dublin may go down to Longford to conduct an auction. In such cases, I think that there should be a practice similar to that which obtains in the case of driving licences. If I am asked by a Garda to produce my driving licence, I can, within a limited time, produce my licence at the Garda station in my own area or at any other Garda station. In the circumstances which I have mentioned, a Dublin auctioneer should be permitted to produce his licence to an officer of customs and excise in Dublin. Under the section, it is not clear that he might not have to produce the licence at the place at which he held the auction.

I shall look into that matter.

Question put and agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill."

I should like to raise the same point on this section that I raised on the last section but I shall not raise it now. I shall content myself with saying that the imposition of a £20 fine seems to me to be unreasonable.

Sections 20 to 24, Schedule and Title agreed to.
Bill reported without amendment.

When is it proposed to take the next stage?

A certain amount of time will be required, as some of the problems arising on Section 2, on which we had a long discussion, are very involved. It may be desirable to recommit that section on the next stage.

I have no objection to ample time being given.

In all probability, the Seanad will not, after next week, sit until after Easter.

Report Stage provisionally fixed for Wednesday, 19th March.

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